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.
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.