Obama Picked a Stellar Judge. He Could Have Done Better.
If confirmed, Merrick Garland would be the fifth white man on a court that already has four. He’d be the fourth judge on the current court from the U.S. Court of Appeals for the D.C. Circuit; the sixth Harvard Law School graduate; the fourth former Supreme Court clerk; the fourth Jewish-American.
Since graduating from law school and spending a year in New York as a clerk to Henry Friendly (second Friendly clerk on the current court), he’s spent his entire professional life since 1978 in a six-block radius centered on the intersection of Constitution and Pennsylvania Avenues in Northwest Washington, D.C.
Is this the diversity of background and professional experience that the Supreme Court really needs? Garland’s high intelligence, first-class qualifications, and vast reserve of personal and professional caution suggest that the ideal of meritocratic qualification for the court seems to have prevailed over diversity.
As one of my most brilliant former students wrote sharply to me last night, “Can you provide any description of Merrick Garland that’s not a platitude from the positive discrimination playbook?” What she meant, I think, was that he seems to give life to the caricature of a liberal legal establishment made up of Jewish lawyers who went to Harvard and had fancy clerkships. To paraphrase Woody Allen in Annie Hall, it sometimes seems that way to me, and I’m one of them.
There’s an easy – too easy -- answer to all this, which is that we don’t have to worry about the social meaning of the Garland nomination because he isn’t a real nominee at all, just a sacrificial lamb. According to this theory, Barack Obama nominated him to send a message to the Senate, not to get him on the court.
There are at least two reasons this answer is too easy. First, Garland might get onto the court after all. Senator Orrin Hatch, a leading Republican voice on judicial matters, said yesterday that he would “probably be open to resolving this in the lame-duck” session of Congress. That’s code for the possibility that once Hillary Clinton is elected, Senate Republicans’ calculus will have shifted and they might prefer confirming the relatively moderate Garland to waiting for a potentially more liberal Clinton nominee. Obama surely won’t have withdrawn Garland’s nomination by then – which means Garland has a possible path to confirmation.
Second, even if Garland is blocked, there’s a symbolic message in his nomination. That message is that diversity isn’t very important on the Supreme Court, and that what matters is a career of legal excellence from which one emerges unscathed by the taint of controversy, risk, or (God forbid) strong opinion strongly expressed.
That hasn’t always been the case. The Supreme Court was one of the first institutions in American life where it was widely agreed that diversity counted – and that included diversity of background, experience, and viewpoint.
Nearly a century ago, people were already speaking of the court as having a Western seat, a Catholic seat, a Jewish seat, and a scholar’s seat – evidence for the time of a fairly broad spectrum of desirable representation.
Franklin Delano Roosevelt’s justices came from the Senate, the Securities and Exchange Commission, governorships, private practice, and the academy. They had staked out controversial, risky positions on the most important issues of the day. William O. Douglas had crusaded against the New York Stock Exchange. Hugo Black was considered the most radical Senator. Think Elizabeth Warren, not Merrick Garland.
To his credit, Obama has aimed at diversity in picking two women, one of them Latina. Their professional experiences weren’t all that varied from the other justices, but that was fine, considering their other virtues.
But was it really necessary for the president to go so far as to nominate possibly the safest candidate in the entire U.S. judiciary? I like and respect Garland, and I’m sure he’d make an excellent justice. He embodies many of the legal virtues that I try to teach. Yet the basis for his selection depends on his plain-vanilla career. It manifests the extreme care that he’s exercised in a long and distinguished professional path.
No Senate staffer will be able to dig up any dirt on Garland, which is good. But no Senate staffer will be able to dig up any non-judicious opinions, either – on any subject. That’s less good. It means that, like Justices Elena Kagan, Sonia Sotomayor, John Roberts, and Samuel Alito, the current nominee has constructed a life under the radar of controversy. That may make him more confirmable, and it may expose the inconsistency of opponents who claim to be champions of judicial restraint. But it still reflects the self-conscious caution of the meritocratic legal elite.
The contrast with Antonin Scalia, whom Garland would replace, is striking. Scalia, who died in February, was also a white, male, Harvard Law graduate who’d worked in the Department of Justice. But as a law professor, he’d staked out strong opinions and earned a reputation as a conservative intellectual leader.
It’s old news that Robert Bork’s confirmation process changed the rules of the game, driving presidents of both parties to stealth nominees. But it’s still worth noting that Garland’s nomination is the new high water-mark of non-controversial court appointments.
This time, a fight was inevitable. Obama could’ve used the chance for a nomination that would make the fight interesting. He didn’t. That may be a testament to his shrewd political mind, but it's still cause for reflection and regret.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Noah Feldman at firstname.lastname@example.org
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