Wednesday, March 16, 2016

Obama's Troubling SCOTUS Pick

President Obama's choice for the Supreme Court of the indisputably brilliant and eminently qualified jurist, Merrick Garland, seems like the tactical move of a political genius.  Garland is truly a "centrist" judge, with a reputation for fairness, civility and following the rule of law.  He has taken the traditional route to the federal judiciary:  (1) Harvard Law School, (2) prestigious clerking positions (Judge Friendly on the Second Circuit and Justice Brennan on the high court), (3) prosecutor (including supervision of the Oklahoma City bombing prosecution), (4) corporate lawyer.  He is a 63-year old white male who has served on the D.C. Circuit since 1995.  Republicans have no legitimate argument for blocking confirmation hearings or, much less confirmation itself of such a reputable, non-partisan nominee. 

Thus, Obama has laid the groundwork for a sustained attack on the unprecedented obstruction of the GOP.  Republicans in the Senate will be able to do little more than offer increasingly lame arguments that have no basis in tradition or logic that will resonate only within their rabid, fact-free echo chamber. The Democratic nominee for president will have strong grounds for challenging the extremism of a Republican Party that won't even given such a moderate choice a hearing. 

But while this might appear to be at least a shrewd short-term strategy, I fear that it is an enormous mistake for several reasons.

First, key to using Republican obstruction against them and highlighting the importance of the Supreme Court as an election issue is a unified push by liberals that urges the Senate to, as Elizabeth Warren so forcefully put it, "do your job."  But, I for one, don't want the Senate to confirm this particular nominee, particularly given his pro-prosecution record on criminal justice issues.  I may be wrong, but I doubt if there are many progressive advocacy groups excited to mobilize for his nomination either.

Second, assuming Hillary Clinton wins the Presidency, the Senate Republicans will likely have an epiphany about doing their job, realizing that Garland is going to be a far more conservative pick than anyone that Hillary will nominate.  Thus, while there is no chance Garland will be confirmed before the election, he will likely be confirmed during the lame duck period before Hillary takes office.  This will deprive the next Democratic president of filling Scalia's seat with a progressive or at least a left-of-center nominee.  And it will put on the bench a justice who is unlikely to shift the court on many critical issues, particularly when it comes to criminal justice and the death penalty.

Third, Obama could have chosen from a deep bench of progressive legal minds with diverse ethnic backgrounds that would fire up a liberal base that might not otherwise be very enthused about a Clinton candidacy.  I couldn't agree more with Kerry Eleveld who put it like this:
Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote. If that person had looked in any way like the group of voters who form what's become known as "the Obama coalition," she or he could have symbolized the very future of our nation that Republicans are actively working so hard to deny.
On the other hand, this could turn out to be genius.  Perhaps the Garland nomination will hurt vulnerable Republican Senators who must uncomfortably defend their obstruction.  Then, when Hillary wins and the Democrats take back the Senate, Obama can graciously withdraw the nomination, claiming that, as the GOP had been saying all along, it is up to the next president to choose the next Supreme Court justice. Hillary then picks a true progressive that shifts the balance of the Court and we all live happily ever after.


scott said...

I think Obama wants a legacy of 3 justices and this does it for him. Kos has a similar take today:

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