Like many of you, I did a Scooby Doo head shake when I heard that President Obama was nominating 63 year old Merrick Garland to the Supreme Court today.
The choice was surprising, because Merrick is a man, white, and old (in Supreme Court terms — Scalia was 49 or 50 when he was nominated to the seat Garland is filling).
Many thought Obama would choose a woman of color, perhaps black or Latino, in order to really embarrass the Republicans with key segments of the electorate in an election year. Latino would have been especially delicious to watch, whether Cruz (who is Latino) or Trump (who demonizes Latinos) is the GOP nominee.
But is it a smart choice?
Why Merrick Garland is a smart choice for Supreme Court
As Jon noted in his post, one of the key motivating behind this choice, I suspect, is that Garland’s name was suggested by none of other than uber-conservative former Senate Judiciary chair Orrin Hatch, just last week. Hatch told Newsmax: “[Obama] could easily name Merrick Garland, who is a fine man.”
Obama is daring the GOP to say “yes.”
So here’s what’s going on, in my view.
1. It’s almost certain that the GOP won’t move forward with the nomination, therefore…
2. The calculus is, what’s the best way to maximize GOP embarrassment over the issue, and help the presidential and congressional elections in the fall?
3. The answer is to pick the guy recommended by the former head of the Judiciary committee — the committee that considers Supreme Court nominations.
But, you might say, why not pick one of the great women on the list, or Indian-American Sri Srinivasan? Maybe because the White House doesn’t think this nominee is going to make it — especially if its one of the more liberal candidates — and they didn’t want to waste the nomination on a progressive darling.
But why not?
Garland was the better candidate for the politics
It’s possible that anyone the President nominates will be so politically tainted by this nomination farce that there’s no way they can be renominated again in a future Clinton (or Sanders) administration. If Hillary were to renominate one of the women, or Srinivasan, next year, she’d be accused of playing politics by picking Obama’s “controversial” election-year pick.
So, Garland, who is roundly considered an excellent, though moderate, jurist, is the best choice once you consider the politics. The goal here is to either get your choice confirmed, or use the confirmation to most help your party and your agenda. If the GOP turns down Orrin Hatch’s choice — a man praised by Supreme Court Justice John Roberts — then they’ll be showing their hand as angry partisans working on behalf of an angry presidential candidate.
And one more thing. Once the GOP goes all bonkers on Obama’s nominee, a nominee as moderate as Garland, it gives a future Democratic nominee an even better chance of being confirmed next year by an already-chastened GOP. Chastened by this year’s Supreme Court nomination battle, but also by the fact that their party nominated a nutjob to be their presidential candidate. Republicans will be smarting from their election loss for months. They’ll be desperate to prove their moderation. It will be the perfect time for Hillary to appoint a more liberal choice.
And that’s not a bad strategy at all.
Garland isn’t all that moderate, it turns out
PS And perhaps Garland isn’t as moderate after all. In one survey, he was ranked as liberal as Kagan and Breyer:
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