As of this moment, writers are scrambling to tell you about President Obama’s nominee for associate justice of the Supreme Court, Merrick Garland. He’s now Chief Judge of the D.C. Circuit Court of Appeals, and has the pedigree tailor-made for a Supreme (
religion aside, since he’s WASP and the last WASP confirmed was Justice Souter in 1990*). If you want all the details of his career, try Google.
There is no question that he’s qualified to serve as a Supreme Court justice. Whether he’s your cup of tea is another matter. Whether you think he’s the sort of justice you hoped President Obama would nominate depends on your priorities. He’s not my kind of justice, but so what? I’m not president, so I don’t get to pick a judge who isn’t highly deferential to law enforcement.
But then, this isn’t a “real” nomination anyway. Judge Garland is 63 years of age. Presidents pick kids for the court, so they will be there forever. Judge Garland has 30 years tops, and more likely less than 25. That’s not a serious length of time in terms of a Supreme Court legacy.
So what’s the deal? Politics, and an interesting game it will be. Senators Grassley and McConnell have already announced that no nominee will be considered by the Senate, meaning that there will be no “advice and consent,” and certainly no confirmation. In this light, President Obama made a strategic pick, someone who was so inoffensive, so eminently qualified, so beyond reproach, that the refusal of Republican senators to consider him will tar their party. They will be the unreasonable obstructionists, there being no reason under the sun not to confirm Merrick Garland.
President Obama made a totally reasonable nomination. The senate Republicans responded unreasonably. Win, Obama.
As for Judge Garland, he’s the sacrificial lamb in all this. Some judge had to get burned by this process, being nominated, smeared by the president’s adversaries, diced and sliced, all to ultimately lose and never again be considered for anything other than senior status. He’s not even likely to get a cool word named after him, like Borking. Judge Garland is taking one for the team.
Is he really the nominee President Obama would want on the Supreme Court. It doesn’t seem likely, though Judge Garland likely isn’t someone the president would find unpalatable. Rather, he’s the nominee who will put the screws to the Senate and test their mettle.
The fear, of course, is that President Obama’s gambit works, the Senate caves in, and Judge Garland is confirmed. Then Justice Alito will have someone to eat lunch with and share secrets about the Fourth Amendment. No, not my cup of tea at all.
*Rick Garland at PrawfsBlawg says he’s a WASP. I’m told by others that Judge Garland is Jewish. Upon re-reading Garland’s post, I think I misread it, and Judge Garland is, indeed, Jewish.