President Barack Obama has nominated Merrick Garland to serve on the Supreme Court. Before I get too far into discussing Garland, I just want to revisit what I said back when Antonin Scalia died. After I got the news and heard the Republicans say that they wouldn’t consider a successor until after the next president is inaugurated, I took a night to think about how the president might overcome their resistance. This is what I came up with:
Having spent a night to think about this, I can only envision two possible ways to overcome this visceral resistance on the right to any nominee the president might put up.
The first idea probably won’t work, but it involves putting forward someone who is advanced enough in age that they’re actuarially unlikely to serve for very long on the bench. To give two examples from the DC Circuit Court of Appeals, President Obama could pick someone like David Tatel or Merrick Garland. Both were appointed to the DC Circuit by Bill Clinton. Garland, who is 63, has been seen as a compromise choice in the past. Frankly, he’s probably not old enough to comfort the Republicans. Tatel, however, is soon to be 74 years old. He’s also been blind since 1972 because of retinitis pigmentosa. He’s an accomplished man and a sympathetic figure, and he’s only about five years younger than Scalia was when he died. While he’s known for fighting school segregation, which is kind of like being an employee of ACORN or a member of MoveOn.Org, it might be worth it to the Republicans to have Obama appoint a 74 year old instead of having President Hillary Clinton appoint the 48 year old Sri Srinivasan early next year.
To be honest with you, though, I am almost certain the Republicans would reject this kind of overture. The heat from their base is too hot.
The only promising way around this heat is to go straight to the trump card, which is the clubbiness of the Senate itself. In other words, the president could appoint a sitting senator to the Court.
I thought Amy Klobuchar would be the best choice if the president followed the second strategy, but he chose the first.
So, remember, part of the reason that Garland is a compromise choice is because he’s fifteen years older than Sri Srinivasan. If he lives no longer than Scalia, he’ll only be on the Court for fifteen years, whereas Srinivasan would be on the Court until 2046. Do the Republicans want to look that gift horse in the mouth?
Now, you’ll hear plenty about Garland’s credentials: National Merit Scholar, valedictorian from Harvard College, a J.D. magna cum laude from Harvard Law School, clerked for Supreme Court Justice William J. Brennan, Jr., served as Special Assistant to the U.S. Attorney General and Deputy Assistant Attorney General in the Criminal Division of the Justice Department.
You’ll also hear stories about how back in 2010, after Justice John Paul Stevens retired, Republican Senator Orrin Hatch of Utah recommended Garland as his replacement and said “I have no doubts that Garland would get a lot of [Senate] votes. And I will do my best to help him get them.”
Here’s what I said at the time:
The three names currently in the mix are solicitor general Elena Kagan, Judge Diane Wood (7th Cir.) and Judge Merrick Garland (D.C. Cir.). The Republicans would not fight Garland, as they see him as the most acceptable possibility. But none of these judges are ideologically as far left as Stevens.
They wouldn’t have fought Garland back in 2010 because they considered him moderate and acceptable, but they’ll fight him today because they’re more radicalized and because Garland, regardless of his reputation for moderation, would tilt control of the Court away from the conservatives.
I anticipate that you’ll hear disappointment from liberal circles that Obama tapped a moderate who is in his sixties. He’s Jewish, but some people were hoping for something unprecedented like the first Asian Justice, or a black counterbalance to Justice Thomas, or a woman to bring the Court more into gender equity. Certainly, progressives were hoping for a more progressive voice. But, the Republicans do control the Senate and they should reasonably expect the president to nominate someone in the middle.
What’s not reasonable is to reject a nominee just because they don’t feel like confirming any Justice.
And that’s what this pick is going to highlight.