Over the past several weeks, President Obama and his surrogates have been urging Senate Republicans to do their job and give his Supreme Court nominee a hearing — once he did his job of actually nominating a justice, that is.
Obama finally announced Wednesday morning that he was nominating Merrick Garland, the chief judge of the D.C. Circuit Court of Appeals, to fill Justice Antonin Scalia’s seat on the high court.
The best that can be said about this pick is that Obama chose the one candidate under serious consideration who most looks like the senators who will hold his fate in their hands: an old white guy. Each of the other candidates who was rumored to be under serious consideration — Ketanji Brown Jackson, Jane Kelly, Sri Srinivasan and Paul Watford — would have brought a level of historic diversity to the nomination that Merrick does not.
(Though, to make my ancestors proud, I do have to mention that Garland is Jewish. If confirmed, he would become the ninth Jewish justice to sit on the Supreme Court, and the fourth on the current Court — joining Justices Ginsburg, Kagan and Breyer.)
In some sense, President Obama has called the senators’ bluff. On Friday, Sen. Orrin Hatch praised Garland as a “fine man” whom he would like to see Obama nominate — but he said he doubted Obama would do so because he thought Obama would play to his more liberal base. Now that the president has done exactly what Sen. Hatch suggested, it would be hard for him and other less extreme Republicans to oppose the nominee.
In other words, Obama probably believes his pick represents the most realistic opportunity to break the logjam in Congress and get a ninth justice on the Court to serve the country. Garland is undoubtedly qualified for the job: He is well-respected as a brilliant thinker, has served as a judge on one of the most important courts in the country for nearly two decades, and has all the schooling and pre-judging markers that are normally associated with being a Supreme Court justice. He is also regarded as somewhat of a moderate, without clearly ideological positions on highly controversial issues.
Obama’s hope must be that the Senate can’t possibly deny Garland a hearing before the Judiciary Committee and then a vote in the full Senate based on these impeccable and somewhat neutral qualifications. And that if the Senate does, President Obama — or President Clinton, as his successor — would have the leeway to nominate a true liberal to the Court after the Senate has failed the American public by refusing to move on Garland.
But there are so many problems with this thinking — so many, in fact, that my first instinct when I heard the Garland was, “WTF?”
First, this “safe” pick relies on a belief that the Republicans in the Senate will be reasonable. It is so hard to believe that this could possibly be the case. These Republicans have worked tirelessly to defeat anything and everything President Obama has wanted over the past several years. They want nothing less than a failed presidency for him; Senator Majority Leader Mitch McConnell has explicitly said as much.
With respect to this seat on the Court, the Republicans hope to win the presidency and then have their president appoint a new justice. Confirming Obama’s pick would be a deviation from how they have acted in every facet of political life under his administration and would ruin their chances of getting a pick on the Court after the election. They are not going to budge on this.
Second, this pick misses a historic opportunity to shift the Court. The Republicans, to their credit, understand the importance of this nomination. They know that a real liberal on the Court could shift American law for decades to come. That is the root of their obstinance, and it makes sense.
The Garland pick is tantamount to Obama giving up on this historic opportunity. Sure, a Justice Garland will be vastly different than Justice Scalia and will indeed shift the Court to the left. But President Obama is missing out on a truly transformative pick — a young justice who would follow in the footsteps of William Brennan or Thurgood Marshall, or would join the now-83-year-old footsteps of Justice Ginsburg. With a true and young liberal, the Court would be able to begin the process of remedying the decades of conservative rule that we have had in this country.
Instead, what we have is the older and Democratic equivalent of David Souter. Souter was appointed to the Supreme Court by the first President Bush. His views on the big controversial issues of law were unknown at the time, but he was promised to be a conservative. To Republicans, he was a big disappointment, becoming a consistent vote in favor of abortion rights, affirmative action, federal government power and more. In response, the rallying cry among Republicans for the second President Bush’s appointments was “no more Souters.”
In Merrick Garland, Democrats have to be worried about the same problem, just with opposite politics. Garland has no track record on some of the big issues of constitutional law because the D.C. Circuit doesn’t address issues arising from the states. He could indeed be a moderate or liberal on these issues — or he could be conservative and vote against abortion rights and other liberal positions. He could become Democrats’ David Souter.
But third and probably most disappointingly, this nomination ignores the importance of diversity at a time when this core principle is being threatened in the electoral process. With Donald Trump and his violent racist xenophobia steadily marching toward the Republican nomination, President Obama could have shown the country the best of America and picked the first African-American woman to serve on the court (Brown Jackson), the fifth woman on the court and a public defender who has represented everyday people (Kelly), the first Asian-American (Srinivasan) or the third African-American man (Watford).
He could have not only rallied the country around diversity but also could have sent a signal that he could have chosen anyone for this post, but he chose a person from an underrepresented group because a) that person was the best for the position, and b) this country deserves to have a Supreme Court that reflects the best of our country’s diversity, not continues the exclusion that has historically plagued the highest echelons of American politics.
Given the choice, President Obama did what almost every other president has done in the past: He picked the old white guy. It’s hard not to be extremely disappointed.