The Merrick Garland Gambit

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.

40 thoughts on “The Merrick Garland Gambit

  1. Scott Morrell

    Regarding being the first WASP nominated to SCOTUS since 1990, you are correct. So I have another theory. Maybe, just maybe, President Obama was looking into the future where WASP’s will be the new minority in the United States, therefore looking to start a new affirmative action policy for them.

      1. Nigel Declan

        Assuming, for the sake of argument, that the Republicans follow through on their threat to essentially ignore the President’s nomination until a new President takes office and assuming further that Garland is both competent and acceptable to both parties, such that his successful nomination would have occurred but for the Republicans’ chosen political maneuvering, would there be a legal impediment to the next President re-nominating Garland for the open seat on the Court?

        1. SHG Post author

          None that I can think of. Indeed, if the next president is a Democrat, there may well be some pressure to pursue this nomination.

      2. Scott Morrell

        No big deal. The news just came out.

        It is remarkable that there is not one Protestant on the Supreme Court. Even more remarkable is that if he would be confirmed, there would be 4 Jewish justices. That is really disproportionate to the demographics of the US.

        I am surprised Donald Trump did not bring this up yet;).

        1. SHG Post author

          Much as I hate to say it, it really is pretty odd. It’s the sort of thing that engenders a backlash, and there seems to be a good chance that somebody will say something. And it’s not likely to be Trump.

          1. Scott Morrell

            Perhaps you are correct unless there is a very subtle dog whistle. So, besides David Duke, I wonder where this “ugliness” might start?

            From what I am hearing about Merrick Garland, he seems to be a great choice who is the least partisan. That is what our country really needs right now.

            President Obama definitely won this battle as you said. If Judge Garland does not even get an up or down vote, then America will be the ultimate losers.

            Finally, if Hillary Clinton wins, then the Republicans will rue the day they came up with this strategy. They are really playing with fire and the odds right now are very much against them (assuming Trump is their ultimate nominee).

            1. SHG Post author

              Garland is not good on criminal justice issues. Not at all. As for the ugliness, have you been watching what’s happening on American campuses? These aren’t conservative or Republicans. These are progressives and SJWs, and they’re not fond of Jews.

            2. Scott Morrell

              You are correct, Scott. I find it both fascinating and hypocritical how liberals cherry pick the first amendment. When it comes to campuses’ views on conservative issues, that is a no-no. When it comes to the persecution of Muslim women in the Middle East, mums the word.

              Progressives are very selective of their constitutional rights. They claim the “high bar’ but in reality they many times either want to shut down opposition opinions or completely ignore it.

        2. losingtrader

          Watch out, cuz Bernie just might nominate YOU.

          Oh, sorry, that was a funny dream I had last night, where you know you are not getting approved so you just act more like a jerk to the Senators than you often do here , merely for your Andy Kaufman-like self amusement. Or, better yet, for ours.

  2. Warrior Woman

    Pretty much in agreement with you. Could have been worse. Doesn’t sound like he would be anti-death penalty.
    Also, I am so tired of the view that being a prosecutor is a necessary requirement to be a judge, not to mention that Harvard/Harvard is one of my least favorite backgrounds for a Supreme Court judge. Oh, well, at least President Obama put their feet to the fire – I hope it energizes women, and minorities, and democrats and anyone who is not flat out uninterested in the rights preserved by our Constitution out to vote in November.

    1. SHG Post author

      No politicking allowed here, or all hell will break loose. I was a big fan of Judge Jane Kelly, but suspect she would have been burned with a nomination now. Hopefully, she’ll make someone else’s shortlist.

  3. Keith

    Don’t know many WASPS whose family claims they left the “pale of settlement” over issues of “antisemitism”. But when I tried that Google thing you mentioned it says the guy is a member of the tribe.

    Speaking of which – I wonder if the Judiciary Committee puts some blood over their doorposts, if the nomination fight will pass right over to President Trump.

  4. Eddie Harrington

    The minute I read the following on Reason I just let out a long sigh,

    “In the area of criminal law, for example, Garland’s votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.””

    God forbid they went with the Judge whose name escapes me that Judge Kopf recommended. All I can say/do is sigh. Hope you are right about him being the sacrificial lamb.

    1. SHG Post author

      Did you figure that my deliberate decision not to quote elsewhere meant that what I really wanted was for you to do it?

        1. SHG Post author

          At least it was a quote from two good sources, Reason and Goldstein. But it’s all kinda old news. Garland is no friend of defendants and their constitutional rights.

  5. Richard G. Kopf


    You (and others) need a guide tell a WASP from other folks President Obama would nominate to the Supreme Court. It is sort of a litmus test.

    Anyway, some guy by the name of Leonard Kreicas (probably not a WASP) has compiled the following list to tell WASPs from others:

    Q: Why did God create WASPs?
    A: Someone has to buy retail!

    Q: Why do WASPs play golf?
    A: So they can dress like pimps.

    Q: How can you tell the only WASP in the shower?
    A: He’s the one with The Wall Street Journal on his lap.

    Q: What do call a WASP who doesn’t work for his father, isn’t a lawyer and believes in social causes?
    A: A failure.

    Q: How do WASPs wean their young?
    A: By firing their maid.

    Q: What’s a WASPs idea of foreplay?
    A: Drying the dishes.

    Q: How can you tell who the WASPs are in a Chinese restaurant?
    A: They’re the ones not sharing their food.

    Q: How can you tell if a WASP is sexually excited?
    A: The stiff upper lip.

    Q: What do get when you cross a WASP and an orangutan?
    A: I don’t know, but it won’t let you into its cage.

    Q: What’s an American WASP’s idea of open-mindedness?
    A: Dating a Canadian.

    Q: What does a little WASP girl want to be when she grows up?
    A: “The very best person I possibly can.”

    Q: What’s a WASP’s idea of social security?
    A: An ancestor on the Mayflower.

    Q: Why did the WASP cross the street?
    A: To get to the middle of the road.

    Q: What happens when four WASPs find themselves in the same room?
    A: A dinner party.

    Q: What do WASPs think of the Mideast situation?
    A: Well, Newport is all right, but EVERYBODY goes to the Cape.

    Q: How does a WASP propose marriage?
    A: “How would you like to be buried with my people?”

    Q: What’s a WASP’s idea of affirmative action?
    A: Hiring South American jockeys.

    Q: What do WASPs say after sex?
    A: “Thank you very much. I’m sorry. It won’t happen again.

    Q: What’s a WASP’s definition of conspicuous consumption?
    A: A Sunfish with a spinnaker.

    Q. Why don’t WASPs have orgies?
    A. They’d have too many thank-you notes to write.

    Q. How can you tell when a WASP is dead?
    A. He lets go of his wallet.

    Q. What do you call a WASP virgin?
    A. You can’t. Her number’s unlisted.

    Q. What’s a WASP’s favorite song?
    A. “I’m Dreaming of a White Christmas.”

    Q. What does a professional WASP call his boss?
    A. Dad.

    Q: How many WASPS does it take to change a lightbulb?
    A: Three. Two to mix the martinis and one to call the electrician.

    Q: What is a WASP menage-a-trois?
    A: Two headaches and one hard-on.

    Q. What is the definition of a WASP?
    A. Someone who gets out of the shower to take a leak.

    Q: What do WASPs think Zimbabwe Rhodesia is?
    A: A wide receiver for the Dallas Cowboys.

    Hope this helps. All the best.


    PS Can an atheist who would otherwise qualify be a WASP?

    1. SHG Post author

      Thank God that they don’t hog all the good tables at the Chinese restaurant on Christmas, so my tribe can get one without reservations.

        1. SHG Post author

          Of course. How else can you get to the pork lo mein when it’s fresh and steaming before those schnorrers, the Goldfarbs, glom it all for themselves.

    2. losingtrader

      You sir. are the funniest judge I know……other than the Oklahoma judge who had the penis pump wooshing under his judicial robes. Are you trying to end up on dremin demon ?

  6. John Thacker

    As a libertarian, I know that the idea of a bipartisan candidate who crosses party lines never means someone like Rand Paul, but rather someone like Donald Trump. Similarly, when it comes to Supreme Court Justices, bipartisan and moderate means someone like Merrick Garland, not someone like Alex Kozinski.

  7. Tom H

    I suspect if Hillary wins on November 8 the senate will hold hearings and confirm Judge Garland by January 20. Unless, the democrat senators decide they don’t want him.

      1. bmaz

        No, I think Obama genuinely likes and respects Garland, and, deep down, Garland’s views fit perfectly with Obama. If Garland can get confirmed, he will be. Obama wouldn’t do that to the man he presented yesterday in the Rose Garden. Not to mention, Obama would like the legacy win of having confirmed a third Justice. My prediction is that, indeed, we get Justice Garland. And on criminal law issues, we will look more fondly upon the man that used to occupy that seat. Scott is right, Garland is just horrible for criminal defense.

        1. SHG Post author

          Not that I called bullshit on the executives call from crim justice reform, but if there was any doubt it was bullshit, say hi to Garland. Not that I would say “I told you so,” but I told you so.

          1. bmaz

            Yes indeed. Garland is hard confirmation of the lack of real interest in criminal justice reform. As was Loretta Lynch. Hard to picture to big time nominees more antithetical to reform.

  8. Jamison

    “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.”

    Criminal defendants are considered to have waived their constitutional rights all the time. You don’t assert your right to remain silent? You have waived that right. Fail to show up for the second day of trial? You have waived your right to be there.

    Maybe this is naive of me, but why doesn’t the same principle apply here? The President asks the Senate for its advice and consent. If the Senate fails to act, why hasn’t it waived that right? I think the President should wait an appropriate time, paper the record to confirm the Senate has no intention of acting, and then swear Garland in?

    1. SHG Post author

      This was argued by commenters in my earlier post that “ignore is not a constitutional option.” Aside from its political ramifications, there is no constitutional rationale to allow a president to unilaterally install a justice. If the Supreme Court was to hold that failure to vote constituted waiver (which would never happen because of its political ramification), it would be one thing, but for a president to do so without authority can’t be condoned.

      1. bmaz

        Nope. And say what you will about Obama (I’ve both good and bad), but he is not that guy who would attempt such a thing, nor do I think SCOTUS would accept it. This is seriously crazy talk.

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