Merrick Garland is a smart choice for Supreme Court

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

Merrick Garland, via Wikimedia Commons

Merrick Garland, via Wikimedia Commons

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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Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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18 Responses to “Merrick Garland is a smart choice for Supreme Court”

  1. Chicagopat says:

    Good thoughts, although I think you are a little delusional if you think the current crop of GOP Senators will be “chastened” by anything. The got decimated (rightfully) in 2008, and McConnell’s first act was to vow to make Obama a one term president. There is no sense of shame left to them. The only way forward, on anything, is to (preferably) remove them from power with a majority on the House and a Supermajority in the Senate (unless we finally ditch the filibuster), or (less preferably) corner them so thoroughly that they have only two routes of escape- over hot coals or broken glass, and let them choose. This is what Obama has done with Garland. Approve his nomination, thus driving their batshit crazy base even more over the edge, or refuse to, and get beat over the head with ads against their most vulnerable Senators from now until election day.

  2. Indy Bob says:

    Hillary might nominate a more socially liberal choice, but her choice will be just as ‘corporate’ as this one. The new dims have completely abandoned the FDR and middle class wing of the party. Sad times in my judgement.

  3. 2karmanot says:

    Roger that!

  4. An_American_Karol says:

    Being Liberal or Progressive comes in degrees. Just how progressive does one need to be to be considered progressive? How and who measures it?

  5. HandsomeMrToad says:

    Obama not liberal? Are you forgetting his two previous SCOTUS nominees? Both as as liberal as anyone on the court.

  6. Phil in FLL says:

    There is also the “WTF?!” factor when the voting public sees these Republican senators refuse to consider a moderate that they recently praised themselves. It will turn voters off, and voters will be less likely to vote for Republican presidential or senatorial candidates.

  7. 2karmanot says:

    All the above

  8. Naja pallida says:

    I don’t think I’d use the word “smart” to describe it, it isn’t even eleventy-dimensional chess. It’s long past time we accepted that Obama is not a liberal. Sure he talked liberal during his first campaign, but we’ve had eight years to come to the realization that he has governed very much centrist – if even to the right on most issues. He never ever had any intention of nominating a liberal justice, no matter how much people on the left and right want to set their hair on fire over the prospect. He certainly wasn’t going to stick his thumb in the Republican’s eye just for the sake of creating an argument. He has never done that, why would he start now? This is probably as good as we’re going to get, and no matter who he nominated, short of Scalia’s reanimated corpse, the Court’s pendulum will swing towards the left after being stuck for so long way off in right field. Which is better for everyone.

    The ball is in the Chuck Grassley’s court now. He can either allow committee consideration, or stomp his feet and hold is breath like the petulant child we all expect him to be. When there is absolutely no substantive argument for not having hearings. Garland is qualified and respected by both sides. The only thing stopping a hearing would be blatant cowardice.

  9. BeccaM says:

    The Republicans keep vowing over and over they will not let any Obama nominee receive hearings or a vote. There is virtually no point in giving them what they want, which is for him to nominate a justice they can easily paint as being a far-left progressive-liberal.

    It’s not often we can count on the GOPers to tell the truth, but in this case I believe we can. They went long, early, with their adamant “No, no, no!” pledge. The amount of face they’d lose in confirming Garland vastly outweighs any benefit they’d accrue in having a moderate rather than a died-in-the-wool progressive nominee from Clinton or Sanders next year, when it is entirely possible we’ll have a Democratic majority Senate again and a tossing of the SCOTUS nominee filibuster rules.

    I really do believe it would cost Obama and the Dems far more if he were to nominate a progressive left justice. And the likelihood of any nominee getting even hearings is minuscule.

  10. SkippyFlipjack says:

    John A, it’s great to have you back.

  11. Baal says:

    I don’t like it. I hate it when Obama does this kind of thing. It’s not 11-dimensional chess and it is risky. Just nominate a progressive. There are ton to choose from. Let them shoot it down. Then repeat the process with a Democratic president.

  12. Krusher says:


  13. 2karmanot says:

    This is an absolute disaster. repeat: 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?

  14. Krusher says:

    I love it when the president meep-meeps the GOTP.

  15. MattNJ says:

    There is also another possible strategy at play here: Obama may be setting up a writ of mandamus case. Here is how it would play out. GOP judiciary committee senators refuse to hold hearing. The administration files a petition for a writ of mandamus in the district court in DC. Case goes to the DC circuit which finds in favor of the administration (and there soon to be ex boss). Senators appeal to SCOTUS (which if they grant cert) would end in a 4-4 tie. Therefore the circuit courts decision is upheld and the president wins.

  16. Don Chandler says:

    Another point, if the republicans can’t compromise now, how will they ever get a filibusterer proof nominee in the future. They are setting up a hardball precedence.

  17. Ol' Hippy says:

    Excellent analysis, Garland, not my first choice, is a good choice to show how hypocritical the GOP might be in their blockade to the jurist. We’ll see how this plays out, if in the fall if this comes back to haunt the GOP after losing the vote. Then a liberal court is almost assured.

  18. heimaey says:

    Sigh. IT’s a game of chicken I hope he wins.

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