That guy.

Photographer: Chip Somodevilla/Getty Images

Obama Makes a Smart Bet for the Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Merrick Garland is the safest possible pick for President Barack Obama. Extraordinarily well-qualified, moderate and often pro-prosecution, Garland has been considered a potential Supreme Court nominee almost since Bill Clinton put him on the U.S. Court of Appeals for the D.C. Circuit, in 1997. But if he isn’t confirmed, it isn’t a permanent loss for Democrats. Sri Srinivasan, his much younger near-clone, will still be waiting in the wings as a confirmable moderate Democratic back-up.

Among court-watchers, it’s long been understood that Garland needed unique circumstances to be nominated: the retiree had to be a white man, and the Senate had to be Republican. Otherwise, why would a Democratic president nominate a moderate white man?

In recent years, the conventional wisdom regarding Garland was that his age -- he is now 63 -- would work against him. Sri Srinivasan, also on the D.C. Circuit, is just as smart as the whip-smart Garland, is only 49, and is South Asian and Hindu to boot, offering a touch of diversity. (Garland is white and Jewish; his almost too WASP-y name is the giveaway clue.)

Now Garland’s age turns out to be a plus, in at least two ways. First of all, it serves as a temptation and incentive for the Republican Senate to confirm him. If the Republicans don’t confirm him, they run the risk that a Democratic president, probably Hillary Clinton, would nominate someone younger, thus consolidating Democratic-nominee leadership on the court for a longer time into the future.

Garland’s age also serves as an advantage because, to put it bluntly, he’s expendable. Assume Mitch McConnell and the Senate stay with their initial promise to block any nominee. Assume, further, that Obama’s nominee becomes a by-word for a national controversy. Such a nominee might have no chance of being confirmed by a future Senate -- and would therefore be rendered unappointable by a future Democrat. The current nominee would therefore be a sacrificial lamb.

If Obama had chosen Srinivasan, that would come at a real cost to the Democrats, because it would potentially eliminate a highly confirmable moderate on a permanent basis. Because Garland is 63, the loss isn’t as great. His nomination was always being saved for a rainy day. And now it’s raining.

For Garland, too, age is an explanation of why he’d agree to be nominated. Every appellate judge dreams of being on the Supreme Court someday, and Garland is certainly no exception. A younger judge might have to consider the risk of becoming a sacrificial nominee. Not so Garland, for whom this is the last chance.

If Garland has bad luck and isn’t confirmed, he can happily remain on the D.C. Circuit, secure in the knowledge that his country honored him with the nomination. The nomination is a net plus for him, however it goes.

Garland has had an extraordinarily distinguished legal career, following the American legal version of what the Romans called the cursus honorum, the course of offices that led to higher and higher professional prominence.

After graduating from Harvard Law School -- like Justice Antonin Scalia and five sitting justices -- he clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit. Friendly was widely considered the smartest appellate judge of his generation, and was thought to hire the smartest law clerks. Several of his former clerks became prominent appellate judges known for their elegance and brilliance; Pierre Leval of the Second Circuit and Michael Boudin of the First Circuit were both considered potential Supreme Court nominees in their day.

Then Garland clerked for Supreme Court Justice William Brennan. Three former Supreme Court clerks now serve as justices. Garland would make it four.  

Garland spent most of his professional career in the Department of Justice in jobs ranging from assistant to the attorney general, to deputy assistant attorney general, to principal associate deputy attorney general. These titles represent in their arcane way a rise from promising young professional to accomplished adult.

He also had a stint as a line prosecutor in Washington – also a Justice Department job. And two stints as a partner at the venerable Washington firm of Arnold and Porter. The firm also has a Supreme Court connection. Its third named partner was Abe Fortas, whose name was removed when he went on to serve on the Supreme Court.

Through this entire career, Garland did his jobs well and carefully. His work ethic is unquestioned, his intelligence first rate. It’s nice to see him rewarded for it.

Oliver Wendell Holmes was nominated to the court in 1902, when he was 61. He ended up serving for 30 years. If Garland isn’t sacrificed on the altar of the Senate, he could be in for a long run himself.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net