Supreme Court Poker

Obama Calls the GOP’s Bluff With Garland Nomination

Republicans figured the president wouldn’t pick the moderate federal appeals judge.

Garland: Will Obama’s Court Pick Get a Fair Shake?

The last time President Barack Obama had a high court seat to fill, in 2010, Republicans singled out Federal Appeals Court judge Merrick Garland as their preferred choice. Utah Senator Orrin Hatch, an influential GOP voice on judicial nominations, said publicly at the time that he’d gone so far as to recommend Garland to the president as “a consensus nominee” who would get confirmed “virtually unanimously.” Obama chose Elena Kagan, his solicitor general, instead.

Asked on March 11 about the current opening created by the unexpected death of Justice Antonin Scalia, Hatch told the conservative website Newsmax.com that Obama “could easily name Merrick Garland, who is a fine man.” Hatch, who is among the GOP politicians who have said the Senate shouldn’t hold hearings on anyone Obama nominates, added that the president “probably won’t do that because this appointment is about the election.” Instead, Hatch speculated, Obama would nominate someone to please the Democratic base.

On March 16, Obama called Hatch’s bluff, announcing his nomination of Garland, the centrist chief judge of the U.S. appeals court in Washington, D.C. Following Senate Majority Leader Mitch McConnell, Hatch promptly doubled down and said lawmakers should stonewall the Garland nomination. “Doing so will keep what should be a serious confirmation discussion from becoming denigrated by the toxic politics of this election season,” Hatch said in a statement on his website. “This approach to the Senate’s advise-and-consent role isn’t about the individual the president has chosen,” the Republican added. “It’s about the broader principle.”

By sending Garland into the partisan maelstrom, Obama has made the battle about a particular individual, one who will test the Republican strategy of maximum obstruction. In a Rose Garden ceremony, the president said that in discussions about Supreme Court vacancies during his White House tenure, “the one name that has come up repeatedly, from Republicans and Democrats alike, is Merrick Garland.” (Obama previously passed over Garland to select two women justices who are perceived as more reliably liberal: Kagan and Sonia Sotomayor.)

Obama highlighted Garland’s supervision, under the Clinton administration, of the federal investigation into the 1995 Oklahoma City bombing and the successful prosecution of homegrown terrorist Timothy McVeigh. Between U.S. Department of Justice stints, Garland was a partner at a corporate law firm in Washington.

At 63, Garland, a judge for the past 19 years, would be the oldest Supreme Court nominee since President Richard Nixon chose 64-year-old Lewis Powell in 1971—a factor that under ordinary circumstances might endear him to Republicans, who would prefer justices appointed by Democrats not to stay on the bench for very long. For all Garland’s ideological moderation, though, his installation in Scalia’s place would undoubtedly tilt the court to the left, giving Democratic-appointed justices a 5-4 advantage that could lead to liberal victories on such topics as abortion, affirmative action, campaign finance, and regulation of business.

The other reported finalists for the Scalia vacancy were Sri Srinivasan, an Indian-born colleague of Garland’s on the D.C. appellate bench, and Paul Watford, a black judge on the U.S. appeals court based in San Francisco. Of the three, Tom Goldstein, a prominent appellate lawyer in Washington and co-founder of the Scotusblog website, ranked Garland as the best qualified and, the Republican roadblock notwithstanding, the most confirmable. Garland, Goldstein wrote before the announcement, is “essentially from central casting.”

As an intermediate-level appellate judge, Garland has generally deferred to federal regulatory agencies in their confrontations with business. He wrote for his court in 2015 when it upheld a 75-year-old ban on federal contractors making federal campaign contributions. In other cases, he’s led panels that backed the National Labor Relations Board when it ordered an Indianapolis company to reinstate workers who were fired after holding a strike to protest actions taken against a co-worker, and when the NLRB ruled against a California lumber supplier that withdrew recognition from a union.

Given Republicans’ intransigence, Garland’s most salient characteristic might be his proven willingness to wait. President Clinton first named him to fill a vacancy on the D.C. appeals court in 1995, but the nomination languished before a Republican-controlled Senate whose majority said the Washington court had too many members. After winning reelection in November 1996, Clinton renominated Garland. In March 1997, he finally won approval in a 76-23 vote; Republicans who opposed him said it wasn’t personal, and they were merely protesting an unnecessary judgeship. If a Democrat is elected this fall, Garland could follow a similar path to a seat on the top court.

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