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| Merrick Garland, the piñata nominee | Merrick Garland, the piñata nominee |
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| In ordinary times, you would expect a president like Barack Obama to nominate a young, liberal judge for the US supreme court. But these aren’t ordinary times. On Wednesday, Obama announced his pick: Merrick Garland. The 63-year-old chief judge of the United States court of appeals for the DC circuit is older than many expected the nominee to be – and more moderate. In other political circumstances, the choice of Garland would be unusual. But these are not ordinary times. | |
| With the exception of Harriet Miers – the quickly withdrawn George W Bush nominee – the last supreme court nominee older than 55 was Ruth Bader Ginsburg in 1993. The reason lifetime appointments to the supreme court have been trending younger is obvious: in general, it means that a president’s constitutional values will get a longer period of representation on the court. Most of the justices on the typical shortlist of potential nominees are significantly younger than Garland. | With the exception of Harriet Miers – the quickly withdrawn George W Bush nominee – the last supreme court nominee older than 55 was Ruth Bader Ginsburg in 1993. The reason lifetime appointments to the supreme court have been trending younger is obvious: in general, it means that a president’s constitutional values will get a longer period of representation on the court. Most of the justices on the typical shortlist of potential nominees are significantly younger than Garland. |
| The pick would also be unusual in that Garland is more moderate than Obama’s two previous supreme court nominees, Elena Kagan and Sonia Sotomayor. While not a conservative, he does have a conservative streak on some issues, most notably the civil liberties of criminal defendants. As Obama observed more than once when announcing Garland’s nomination, the judge’s moderation earned him significant bipartisan support for his confirmation in the US Senate. Had Garland been nominated in 2007, liberal groups would be up in arms. | The pick would also be unusual in that Garland is more moderate than Obama’s two previous supreme court nominees, Elena Kagan and Sonia Sotomayor. While not a conservative, he does have a conservative streak on some issues, most notably the civil liberties of criminal defendants. As Obama observed more than once when announcing Garland’s nomination, the judge’s moderation earned him significant bipartisan support for his confirmation in the US Senate. Had Garland been nominated in 2007, liberal groups would be up in arms. |
| But it’s not 2007. Senate Republicans have made it clear that they will not hold hearings, let alone a vote, on any Obama replacement for Scalia. Given the stakes – even if he is more moderate than Kagan or Sotomayor, Garland would still be the first Democratic nominee to be the median vote on the court since early in the Nixon administration and would move the court to the left – they have no reason to back off before the election. | But it’s not 2007. Senate Republicans have made it clear that they will not hold hearings, let alone a vote, on any Obama replacement for Scalia. Given the stakes – even if he is more moderate than Kagan or Sotomayor, Garland would still be the first Democratic nominee to be the median vote on the court since early in the Nixon administration and would move the court to the left – they have no reason to back off before the election. |
| Senate Majority Leader Mitch McConnell immediately asserted again that nobody would be confirmed before the 2016 elections. Garland’s age and substantive views are therefore probably not terribly important. The significance of the nomination is more about the politics of supreme court nominations and the 2016 elections than about changing the direction of the court. | Senate Majority Leader Mitch McConnell immediately asserted again that nobody would be confirmed before the 2016 elections. Garland’s age and substantive views are therefore probably not terribly important. The significance of the nomination is more about the politics of supreme court nominations and the 2016 elections than about changing the direction of the court. |
| Obama’s logic is not hard to discern. Assuming that Republicans will obstruct the nomination, Obama is presumably trying to make Senate Republicans look as unreasonable as possible. The influential Senate Republican Orrin Hatch actually cited Garland as the kind of moderate justice Obama should appoint but allegedly wouldn’t. The well-liked Garland will be very difficult to portray as a wild-eyed liberal too far outside the mainstream to merit a hearing, and could serve to make Republican obstruction look unreasonable. | Obama’s logic is not hard to discern. Assuming that Republicans will obstruct the nomination, Obama is presumably trying to make Senate Republicans look as unreasonable as possible. The influential Senate Republican Orrin Hatch actually cited Garland as the kind of moderate justice Obama should appoint but allegedly wouldn’t. The well-liked Garland will be very difficult to portray as a wild-eyed liberal too far outside the mainstream to merit a hearing, and could serve to make Republican obstruction look unreasonable. |
| Another factor to consider is that not every potential nominee may have been willing to serve as what Texas senator John Cornyn candidly described as a “piñata.” Jane Kelly, for example, a moderate judge currently serving on the eighth circuit court of appeals, was always a longshot to be nominated. But because she had been supported by her fellow Iowan, the Republican Senate Judiciary Committee Chairman Chuck Grassley, a conservative group decided to preemptively attack. | Another factor to consider is that not every potential nominee may have been willing to serve as what Texas senator John Cornyn candidly described as a “piñata.” Jane Kelly, for example, a moderate judge currently serving on the eighth circuit court of appeals, was always a longshot to be nominated. But because she had been supported by her fellow Iowan, the Republican Senate Judiciary Committee Chairman Chuck Grassley, a conservative group decided to preemptively attack. |
| An ad was run in Iowa criticizing Kelly for arguments she made representing an accused child molester when she was a public defender. The ad was deeply unfair – Kelly was just doing her job, providing the representation the Sixth Amendment guarantees to even the most unsavory criminal defendants. But more than one person on Obama’s shortlist may well have quietly let the president know that they weren’t enthusiastic about being put through months of Republican attacks without any chance of actually becoming a supreme court justice. | An ad was run in Iowa criticizing Kelly for arguments she made representing an accused child molester when she was a public defender. The ad was deeply unfair – Kelly was just doing her job, providing the representation the Sixth Amendment guarantees to even the most unsavory criminal defendants. But more than one person on Obama’s shortlist may well have quietly let the president know that they weren’t enthusiastic about being put through months of Republican attacks without any chance of actually becoming a supreme court justice. |
| Whether this is the best choice from a political perspective remains open to question. Some supporters of President Obama undoubtedly would have preferred a well-qualified minority candidate such as ninth circuit judge Paul Watford or California State supreme court judge Tino Cuellar. The Democratic base is less likely to be enthusiastic about Garland. Some liberals will also argue that Obama should make the case for a strong liberal rather than making a relatively bland, centrist pick. | Whether this is the best choice from a political perspective remains open to question. Some supporters of President Obama undoubtedly would have preferred a well-qualified minority candidate such as ninth circuit judge Paul Watford or California State supreme court judge Tino Cuellar. The Democratic base is less likely to be enthusiastic about Garland. Some liberals will also argue that Obama should make the case for a strong liberal rather than making a relatively bland, centrist pick. |
| Obama’s calculation appears to be that the best political course is to make Republican obstruction look as unreasonable as possible. We will see in November whether his judgment is correct. But either way, the next president is virtually certain to still have a supreme court vacancy to fill. | Obama’s calculation appears to be that the best political course is to make Republican obstruction look as unreasonable as possible. We will see in November whether his judgment is correct. But either way, the next president is virtually certain to still have a supreme court vacancy to fill. |