The Obama Administration was smart to wait until after this week's presidential primaries to nominate Merrick Garland for the open seat on the Supreme Court. The primary calendar is entering a bit of a lull for the next several weeks, and there is now sufficient media space for everyone to focus on the nomination and the Republicans' bizarre and brazenly nonsensical opposition. (Just as one example of such craziness, Senate Majority Leader Mitch McConnell literally phoned in his "f*ck you" to Garland, telling him that meeting in person would be a waste of time and claiming that this was somehow a matter of politeness.)
Given that the Obama people were savvy about the timing of this nomination, should we also give them the benefit of the doubt regarding the selection that they made, as a political matter? Yesterday, Professor Dorf weighed in on the issue of Garland's relatively advanced age, responding to suggestions that a 63-year-old's relatively short expected lifespan made him a less-good choice than younger possibilities. Professor Dorf argued that there are good reasons either to view Garland's age as a good thing or, at least, not a bad thing. As is so often the case, I found Professor Dorf's arguments thoughtful and persuasive.
On the broader question, however, I have been very frustrated by Obama's decision to nominate Garland. One of the initial news articles that I read (which I cannot now track down to provide a link) suggested that Obama had chosen Garland both for his centrism and his age, essentially as an olive branch to Republicans. The idea, I guess, was to say, "Hey, we've essentially given you a term-limited centrist. Will you vote for him now?" Ecchhh.
The editorial page editor of The New York Times, Andrew Rosenthal, expressed my "ecchhh" in a coherent form, on a podcast yesterday:
"The worst news I read lately is, I think, Barack Obama's appointment of Merrick Garland to the Supreme Court. While everyone says he's a great jurist, I think it's a wasted opportunity, for one thing. I think he thinks, and I'm not certain, that this is a tactical, smart thing to do with the Republicans. And I can't believe, after nine [sic] years, Obama has not learned that there is no way to play that game, and whenever he does, they just think he's weak and stupid. And it's not exactly a diversity move. I believe he's a sixty-three-year-old white guy and there were extremely well-qualified women and minorities. And I think they will tell us they did this because it was a non-starter, and then Hillary Clinton can make the real appointment. That's, in my view, bogus."Is Obama simply repeating his naive mistakes of the past, somehow believing that there is a way to get Republicans in the Senate to relent and meet him halfway? That was my initial reaction, but I think that there is a different way to describe the politics here. Although this alternative view is more charitable to Obama and his political advisors, I end up where Rosenthal is, thinking that this is a huge missed opportunity.
So let us assume that Obama did not do this in the hope that the Republicans would see the light. (For what it's worth, Obama told Nina Totenberg in an interview that he picked Garland because, as Totenberg put it, Obama wants "a judge who could get confirmed." I suspect that this is not true, but there it is.) This is a safe assumption, because "to force a vote on the nomination in the Senate would take at least 13 Republican votes if it ever got out of the Judiciary Committee and onto the Senate floor, which is unlikely." That means that this is not merely a matter of getting non-red-state senators who are in tough re-election races (in Ohio, Pennsylvania, New Hampshire, Illinois, and Wisconsin) to save their own skins, unless McConnell and the leadership decide that those seats are truly going to be turned by the Supreme Court fight. That could happen, but we can assume for now that the Senate Republicans' blockade will hold.
This means that the Supreme Court nominee will essentially be Hillary Clinton's second running mate. Although it would be unseemly for a judicial nominee to appear at a political rally, it will be abundantly clear to everyone that Obama's nominee is a big part of what people should take into account as they make their choice. Will Garland help in that regard, more than any of the others would have helped?
The best that one can say, as a matter of political strategy, is that the Democrats are worried about what used to be known as Reagan Democrats, a shocking number of whom are now expressing support for Donald Trump. (Even labor union leaders are reporting disturbing rumblings from their members, who would never vote for Cruz or Kasich but might vote for Trump.) Maybe the idea is to allow Hillary to pick a woman and/or minority running mate and use Garland to reassure scared aging white men that the whole government is not being taken over by modernity. Even if Hillary picks a white male running mate, perhaps the concern is still that she needs to be able to point to Garland as this unassailable paragon of centrist virtue, not at all scary or different, to paint the Republicans as utterly unreasonable.
Perhaps, but I am skeptical. Garland, like any nominee, will not be perceived as moderate for very long. The Times already ran a front-page article showing that "A Supreme Court With Merrick Garland Would Be the Most Liberal in Decades," and Garland's ideology clearly puts him in the middle of the more liberal wing of the current court. Anyone Obama nominated could be attacked as liberal, and given that "not acceptable to the most conservative Republicans" is the new definition of liberal in Washington, that label would stick to anyone.
This does not mean, of course, that the savvy political move would be to simply throw off all caution and say, "You know what? They will call anyone a commie-liberal-activist-Kenyan-secret-Muslim, so we can do anything we want. Let's just choose the farthest left person we can find." That would be ridiculous, but that was never the choice in any case. The other people on Obama's short list could all be reasonably presented by Democrats as highly qualified and within the normal bounds of judicial philosophy. Everyone from Sri Srinivasan to Jane Kelly to Jacqueline Nguyen, all on Obama's reported short list, would survive any reasonable debate about qualifications and judicial philosophy, and that would equally put pressure on Republicans to be reasonable.
So, if the issue is that we want to get a judge who could be confirmed, it is difficult to see why Obama would think that Garland was any more likely to break the Republicans' will than the other choices. And if the goal is to give Hillary Clinton someone to whom she can point, saying, "This is the person that Republicans are unanimously opposing," then one would think that there were better choices than Garland. Not that he is a bad choice, just a puzzling one. After all, one of the big concerns in the Clinton camp is that they might not be able to get the Sanders enthusiasts, especially young voters, excited about Hillary for the general election. Having Garland on the shadow ticket seems unlikely to move the needle with such voters -- and, more importantly, potential non-voters.
To be clear, I think that Obama's choice was not at all a bad one, and the Republicans should give him a hearing and confirm him. But in the political cauldron within which these decisions are being made, it is difficult to understand how Garland was the best choice.