We Don't Know What a Fast Garland World Would've Looked Like

It is almost certain that Donald Trump is going to run out the clock on facing real legal consequences for his myriad 2020 election related crimes before the 2024 election occurs. Consequently, many are blaming Attorney General Merrick Garland for being too slow and cautious in his prosecution of Trump. By taking so much time before bringing his case, Garland enabled Trump's various delaying tactics -- aided, of course, by loyalist judges at both the trial level and Supreme Court -- to stretch the cases out until after election day. Had he moved faster and more aggressively, things would have been different.

Maybe. But the thing about alternate futures is that we can't live there; and if we did live there, we wouldn't know here. Suppose that Garland did move fast and aggressive on Trump right at the outset of Biden's term. And suppose that right-wing judges such as the current Supreme Court majority, or Judge Cannon, issued the same rulings that they did in our timeline -- providing broad immunity to Trump designed to shield him from legal accountability. I suspect that, in that timeline, there would be a lot blame cast at Garland for moving too quickly -- he rushed things, he let political expediency get in the way of methodically building a case, and so he gave the courts an excuse to slow things down or even to cast his investigation as a witch-hunt rather than a genuinely legalistic inquiry. Had he been more temperate, things would've gone differently

Now, since we live in our timeline, we know that a more temperate and methodical approach would not have led to a success story. But the point is not just that it's always easy to speak with the benefit of hindsight. It is that we actually don't know what alternative paths-not-taken would look like, and if we did know we wouldn't know what was happening in our path. This is a ubiquitous problem, and while it is entirely reasonable given what we know now to say that Garland made the wrong judgment, it is not hard to imagine a very plausible timeline where Garland made the judgment we (in the prime timeline) say is clearly "right" and it is widely viewed (in the alternate timeline) as a terrible and eminently avoidable miscalculation.

Is It Possible To Confirm a Supreme Court Justice

Presidents are going to nominate Supreme Court Justices who, roughly, correspond to their political beliefs. There is no use complaining about that. And there is a solid case to be made that, where the nominee is not otherwise unqualified or (perhaps) a shrieking radical, members of the opposition should not actively block the confirmation.

That norm had been fraying for quite a few terms now. But the treatment of Merrick Garland has completely annihilated it.

The fact of the matter is that Democrats legitimately feel robbed of a Supreme Court Justice right now. There was a vacancy in a Democratic administration. The nominee was a liberal, but not one that even Republicans contended was either unqualified or some sort of radical. Garland was a Breyer, not a Kennedy, but he wasn't a Reinhardt either. There wasn't even the pretense that GOP obstruction had anything to do with Garland's own merits as a potential Justice. They just decided that they weren't going to vote for, or allow a vote on, or even consider someone a Democrat nominated. Hell, Ted Cruz went as far as to suggest Republicans could justly prevent a Democrat from ever appointing anyone to the Supreme Court ever again.

Given that, how can anyone look at Senate Democrats and tell them with a straight face that they shouldn't just line up to block whomever Trump nominates? It's not just "they did it first," it would also function as a form of restorative justice. Again, from their vantage point this is a stolen seat -- full stop. And we just learned there is no political consequence for this sort of obstruction.

Garland Isn't a Kennedy, He's a Breyer

And the nominee is ... Merrick Garland, D.C. Circuit Court of Appeals! (Looks like my SCOTUS pick streak comes to an end -- but two out of three ain't bad). Garland wasn't the first choice of many liberals, but I think in retrospect it is highly likely that many of the younger guns (Kelly, Srinivasan, etc.) calculated that they have a better shot in the future then in this crap-shoot of an election year confirmation attempt. Garland, who's 63 years old, almost certainly knew it was now or never.

And with respect to liberal concerns, look -- Garland isn't a Ruth Bader Ginsburg. But he's not a Anthony Kennedy either. He'll be a reliable member of the Court's liberal bloc. There's a reason he's been the primary feeder of liberal Supreme Court clerks for years now. Replacing Justice Scalia with Justice Garland would be a tremendous move forward.

The other thing to say about Garland is that he really puts Senate Republicans in a pickle. It's not just that, as Chuck Schumer put it, if Garland can't garner bipartisan support than nobody can. It's how stark of a choice he puts in front of Republicans. The obstruct at all costs approach puts two outcomes on the horizon: either whichever 39 year old liberal ingenue Hillary Clinton nominates after 12 months of Republicans insisting that "this election is when the people decide!", or Donald Trump putting forward Judge Judy. Suddenly, a 63 year old conventional Democrat doesn't seem that bad, does it?

In any event, congratulations to Judge -- hopefully soon-to-be Justice -- Garland, who is a fantastic jurist and would make a great addition to the Court. May your confirmation process be smooth as is conceivably possible in these turbulent times.

Primary Editor Roundup

I'm becoming a villain. Not sure how I feel about that.

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Arkansas keeps on trying to ban gay people from adopting children. Their latest effort has been struck down as unconstitutional, and the state attorney general doesn't sound enthused about appealing.

A suicide bomber hit a refugee camp in Pakistan. The attack was apparently retaliation by Sunni terrorists after Shi'ite villagers killed two women for cnverting from Shi'ite to Sunni Islam.

...And now Merrick Garland is extreme, apparently for not wanting to burn the papers of Justice Harry Blackmun.

Two bad tastes which go poorly together: A dude affiliated with the ZOA is trying to convince Jews to go for Palin. Good luck.

Well, this is one way to get folks to read their contract language.

You may have come across a story claiming that former IAEA chief Mohamed ElBaradei said in an interview that "the Israeli occupation only understands the language of violence" and endorsing terrorism. The piece, which was purportedly sourced to the UPI, is almost definitely fake; the source is actually Iran's Press TV and Hamas' website.

Fork in the Road

Orin Kerr comments on the phenomenal diversity of Obama's reported short-list for Justice Stevens' soon-to-be vacant SCOTUS seat:

First, consider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?

Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices.

No matter who he chooses, Obama will continue to break new ground, or at least help bolster some of the low numbers of people of certain arguably underrepresented backgrounds on the current Court. For example, Elena Kagan would become only the second former Harvard professor presently on the Court (joining Justice Breyer). Either Kagan or Wood would be only the second Chicago professor (joining Justice Scalia). Further, Merrick Garland would be only the second Justice on the Court who went to Harvard College; then Harvard Law School; then clerked for Henry Friendly; then clerked at the Supreme Court; and then worked at DOJ and was a partner at a big DC law firm before serving on the DC Circuit (joining Chief Justice Roberts).

Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.

Reading through the recitation of the trio's clerkships, I still thought this was serious -- I was imagining some in-depth discussion of the different branches of liberalism represented by Justices Blackmun, Marshall, and Brennan. Alas, I was met with sarcasm instead. Albeit funny sarcasm.

However, Professor's (fully-warranted) snarking aside, I think there are some significant choices inherent in the Wood/Kagan/Garland decision. First, in terms of relative controversy of appointment, there are notable differences -- Wood looking like the most likely to spark a fight, Garland the least likely, and Kagan somewhere in the middle. Kagan would be a change in being a rare (in recent times) Justice with no prior judicial experience -- folks vary as to whether that's a good or bad thing. At the same time, she has a reputation for being a consensus-builder -- an attribute Stevens shared and that Obama may thus value in the ever-present battle to secure Justice Kennedy's vote. Kagan also is probably the most sympathetic to expansive executive power of the three.

Garland is known for being a "moderate", although I'm not quite sure where that reputation comes from -- I had always thought of him as the second of the two liberal lions on the DC Circuit (alongside Tatel). And Wood, for her part, might be the purest intellect of the threesome (no knock on the other two) -- if Obama wants someone capable of going toe-to-toe with Scalia, Wood is battle-tested from her years of sparring with Posner and Easterbrook on the 7th Circuit.

Of course, the three do all share one critical attribute: all are clearly qualified and would make stellar Supreme Court Justices.