With Garland Supreme Court choice, Obama dares GOP to say yes

News has just leaked that Merrick Garland is going to be President Obama’s nominee to replace Antonin Scalia on the Supreme Court.

At first glance, Merrick Garland is a caricature of a moderate Supreme Court appointment: a 63 year-old white Harvard Law graduate who currently serves as the chief judge on the United States Court of Appeals in the DC Circuit and is friends with Chief Justice John Roberts. Garland is so moderate, in fact, that Orrin Hatch said just last week that Obama “could easily name Merrick Garland, who is a fine man” to fill Scalia’s seat, before qualifying that “he probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

Hatch also spoke favorably of Garland in 1997 when he was confirmed to the DC Circuit Court and in 2010 when he was being considered to replace Justice John Paul Stevens on the Supreme Court. In 1997, Hatch called him “not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration.” As is the case today, SCOTUSblog notes that Republican opposition to Garland’s appointment to the DC Circuit had less to do with Garland and more to do with their reluctance to fill the seat at all. In 2010, Hatch told Reuters that Garland would be a “consensus nominee” and that there would be “no question” that he would be confirmed.

That vacancy went to now-Justice Sonia Sotomayor.

Merrick Garland, via Wikimedia Commons

Merrick Garland, via Wikimedia Commons

Hatch is right when he says that this appointment is about the election. But he’s wrong on how the politics work. Obama has heard the GOP loud and clear: They aren’t going to appoint his nominee, no matter who it is. They aren’t even going to meet with them. Knowing that he’s going to get blocked, he may as well make the block look as ridiculous as possible. And it’s hard to get more ridiculous than blocking the guy who you said just last week you’d be okay with.

If Obama wants to leverage this nomination fight for Democrats’ electoral advantage, he shouldn’t nominate a liberal; he should call Hatch’s bluff and force the GOP to show the public just how dedicated they are to not doing their jobs.

The other reason why Garland’s nomination makes sense from a political perspective is that it shields the candidates that Obama and, more realistically, Hillary Clinton would actually want to appoint to the court from what is sure to be a disgusting nomination fight. If the end goal is, say, to have a Justice Sri Srinivasan, better to wait until the GOP has finished debasing itself going after Garland.

Of course, the problem with this strategy is that the GOP could turn around and confirm Garland, who, as Hatch has said multiple times, is the best nominee they could hope for from a Democratic administration. In which case, Obama would have used up his last chance to solidify his political legacy on a justice who has ruled against granting habeas corpus to Guantanamo detainees and has rarely sided with criminal defendants throughout his career.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • It’s a political brinksmanship move. The way I see it, Obama could have gone one of three ways:
    – Nominated a typical moderate / liberal-leaning candidate like his last two picks and have them be mostly forgotten, except he’d be accused anyway of nominating a far left radical commie.
    – Nominate an actual liberal-progressive and be accused of nominating a far left radical commie.
    – Nominate someone like Garland and dare the GOP to confirm him, which they won’t do because they’re going to accuse Obama of having nominated a far left radical commie because the GOP doesn’t give a shit about the truth anymore.

    The Republicans have boxed themselves in. They can’t do anything and won’t do anything. Garland will not be granted any hearings, never mind a vote.

    Meanwhile, the Obama and the Democrats — and Clinton and Sanders — have their talking point: “Our current President even nominated a moderate consensus justice, a man the Republicans themselves said would be a good Supreme Court nominee, and the Republicans just want to keep scoring political points at the expense of our nation.”

  • 2karmanot

    Typical Obama move. Why, Garland is so moderate, he’s conservative. This thinking just points out again, that Obama is incapable of greatness in leadership: on a justice who has ruled against granting habeas corpus to Guantanamo detainees. Does anyone remember that habeas corpus used to be a cornerstone of Democracy in America and the stalwart reserve for citizens seeking justice against imprisonment and detention without review and a jury of peers?

  • texasshiva

    I agree that it’s a risk, but it’s a calculated risk. If the GOP doesn’t even consider someone they’ve flat out said would be a “consensus nominee”, they’ve opened up the possibility of someone they REALLY don’t want should they not get the White House. However, if they DO confirm, they lose all credibility (if they had any left).

  • Rational

    I agree with gratuitous that in reality if the R’s had a brain they would declare victory and confirm this old white guy who sounds to be bosom buddies with the reactionary wing of the rethuglican party ( v. the Tea Party wing).
    Obama got played into appointing, what sounds like, another conservative to replace scalia thus cementing the right wings control of the Supreme court for another 20 years.
    I understand how Obama felt the need to do a little more hippy punching on his way out but if that is the case why didn’t he renominiate Bork, or Napalino from faux news, that would have really showed them there R’s force them to take their dream choice.

  • gratuitous

    The smartest move for the Senate Republicans would be to hold hearings, vote Garland out of committee, have a floor vote and install him as the latest Justice. Do it by Tax Day, and the Republicans would defuse this issue pretty effectively, have time to mollify the cranks and idiots who make up so much of their base these days, and go back to obstruction as usual.

    Which means they’ll do no such thing, because they’re not very s-m-r-t.

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