March 16, 2016

Thoughts on the Nomination of Merrick Garland

A few minutes ago, President Barack Obama nominated Judge Merrick Garland to fill the Supreme Court vacancy caused by the death of Antonin Scalia. As soon as the White House press conference on the lawn was over, Senator Mitch McConnell reiterated his position on the Senate floor that “the American people should have a say” on the next Supreme Court justice. (Of course, the elected the current president twice. Apparently, this doesn’t count.)

I had hoped for the nomination of a young, liberal, Protestant candidate, preferably a woman and preferably an ethnic minority.Frankly, I am disappointed by Mr. Obama’s appointment. On the other hand, a nominee of the sort I had hoped for had  a vanishingly small chance of actually being confirmed.

Judge Garland clearly was chosen because he is an experienced, centrist judge, who has already been confirmed by the Senate for a position on the United States Court of Appeals for the District of Columbia Circuit. Objectively, he is one of the best qualified conceivable candidates for elevation to the high court. He is older than most Democrats expected or hoped for. Judge Garland has but a single problem. He has been nominated by a Democrat when the Senate is controlled by a hateful band of ultra-partisan Republicans.

Does Judge Garland have a chance of being seated on the Supreme Court? Probably not much of one. A groundswell of support from the country might change a few Republican minds in the Senate, but an excellent, though centrist, nominee is not likely to ignite much Democratic passion.

Politically, the nomination of Judge Garland may be quite savvy. If he is not confirmed, as seems likely, and a Democrat wins the presidency, as also seems likely, the next nominee will surely be someone more liberal or even—Republicans would hate this—Barack Obama himself. In other words, although Senate Republicans may not want to confirm—or even consider—Judge Garland, they may be forced to confirm someone much less to their liking.

The best (and even likely) scenario is this: the Senate fails to act on the president’s nomination, Hillary wins the election, the Republicans lose their Senate majority, and President Hillary will be able to nominate and have confirmed whoever she wants on the court.

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