Wednesday, March 16, 2016

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.

1 comment:

EW said...

To be sure, Garland's chances to get nominated to the High Court were quickly passing, so he had every reason to take a gamble here.

But it's not clear Obama really expects him to prevail.

Some have speculated that Obama picked Garland precisely to put the Republican Senators in the uncomfortable position of treating a well-qualified, wholly inoffensive (white! male!) candidate badly, thereby helping the Democrats in November. I expect there's something to that. But if that were the game, I'd expect that Obama would have hunted down another Catholic nominee, just to tighten the screws a little more on the electoral consequences in Pennsylvania and Ohio. (And who knows? Maybe he did, but couldn't find any willing to serve as a pinata for the Republican Senate.)

Rather, Garland's nomination has two effects.

First, it diminishes the salience of the Supreme Court in the coming election. The chief dynamic in the coming election will the the extent to which Republicans can motivate their evangelical troops to turn out and vote for Trump (which is a lost cause) and the rest of the Republican ticket (which isn't lost yet, but things are looking bleak). The Supreme Court will be a key argument in trying to get them to hold their nose and pull the lever. Garland's nomination takes some of the steam out of that argument.

Second, after the election is over and Hillary selects a more liberal nominee, various factions within the GOP will remonstrate against each other about how they could have had a relatively old, white, male, moderate justice, BUT NOOOOO...., the ideological purists had to lead us to our doom! That should be useful in the years to come.