Politics, SCOTUS, Supreme Court

Merrick Garland Is The Right Man For The Job, But Not The Job You're Thinking Of

President Obama was not looking for someone to serve on the Court; he was looking for someone who could navigate the next few months with dignity.

By  
on

righteous indignation Tamara TaboWhen President Obama nominated Judge Merrick Garland to the United States Supreme Court last week, he may have picked the right man for the job. Unfortunately for Merrick Garland, the job in this case is probably not serving on the Supreme Court.

President Obama was not looking for someone to serve on the Court. He was looking for someone who could navigate the next few months with dignity.

Now, I don’t doubt that the President wants the Senate to confirm Garland. I don’t doubt that the President thinks that the Senate should confirm Garland. But does President Obama think that the Senate will confirm Merrick Garland? Probably not.

This is part of why Garland is such a smart pick from the President’s perspective. Garland is a nominee who, if the Senate somehow confirms him, the President can feel proud of. Garland is also a nominee who, if the Senate ignores or rejects him, walks away unscathed.

Help Wanted: A Respectable Nominee Who Almost Certainly Will Not Be Confirmed.

What will Senate Republicans do with Merrick Garland?

Probably nothing.

Sponsored

Merrick Garland is a well-respected and well-seasoned judge, enough of an establishment figure that conservatives have been civil and generally complimentary to him in the past.

But, for good or ill, Republicans have made a public pledge that they won’t walk back from simply because the President nominates someone qualified for the job.

Why?

GOP Senators didn’t necessarily think up this whole judicial confirmation lockdown thing on their own. Those who did were not especially concerned with the quality of President Obama’s nomination for the present Supreme Court vacancy.

They were adamant, even before Justice Scalia’s death, about the Senate not filling or attempting to fill a single vacancy anywhere in the federal judiciary for an entire year. They wanted Senate Republicans to stonewall all of Obama’s nominees, not because of a supposed Congressional tradition and not because of a belief that fairness dictates that the function is always best left to a newly elected President, but rather because they think President Obama is a bossy jackass.

Sponsored

Heritage Action released a statement on January 11, 2016 from Heritage Action CEO Michael A. Needham, which read,

“President Obama has repeatedly ignored the separation of powers over the past seven years. [ . . . ] Given the administration’s disregard for Congress’s role in our constitutional system of government, the Senate should refuse to confirm any more of the President’s judicial nominees.”

Later in January, Heritage Action issued a stern warning to Senate Republicans, letting them know that they would be scrutinizing Republican ranks for any signs of hesitation: “Moving forward, Heritage Action will continue to oppose all judicial nominees and reserve the right to key vote against any and all judicial nominations retroactively.”

The emphasis, I’ll emphasize, is HA’s.

Heritage Action is among the groups whose key voting methods have been criticized for years. There is, however, no doubt about the power that HA holds over Republican legislators.

Although the announcement did not garner as much attention before the Supreme Court was in the mix, Senate majority leader Mitch McConnell et al. have said since the second week of January — more than a month before Antonin Scalia’s death — that they intended to stop confirming any of the 42 Obama nominees, nor fill any of the 83 federal judicial vacancies.

Heritage Action has threatened to make things hell for Republicans unless they shut the whole down the whole damned operation, to teach the President a lesson. Consequently, Senate Republicans are probably pretty well stuck opposing Merrick Garland to the end.

Suffice it to say, Merrick Garland doesn’t stand much of a chance.

Help Wanted: A Known Quantity Who Rocks No Boats That Were Not Already, By Necessity, Rocking.

Garland is not the compromise nominee I suggested in my earlier column, but neither is he an extremist pick. If judges were jewelry, Merrick Garland would not be a statement piece.

As a white heterosexual man who, so far as I know, boasts full use of his limbs and primary senses, Merrick Garland wouldn’t make history. He wouldn’t be an especially interesting addition to the SCOTUS rainbow of diversity, but the President isn’t exactly lacking in street cred when it comes to identity-based hiring.

While some progressives might whinge about Judge Garland being too moderate, they can’t pretend that he wouldn’t move the Court in a liberal direction in most consequential, ideologically divided decisions.

Garland is to liberals what John Roberts is to conservatives. And we’ve been coping with that for the past ten years.

Help Wanted: Someone old enough to have nothing to lose.

Chief Judge Merrick B. Garland

Chief Judge Merrick B. Garland

Merrick Garland is 63 years old, a bit longer in the tooth than most recent Supreme Court nominees.

Most of the other short-listers are young compared to Judge Garland. Sri Srinavasan turned 49 less than a month ago. Jane Kelly is 52. Ketanji Brown Jackson is 45. Gregg Costa, my pick, is a baby-faced 44.

Due to his age, Garland would most likely not have been a serious contender this time around, were it not for the peculiar circumstances. He will almost certainly not be in the running for vacancies in future years.

The other promising possibilities for the President’s nomination will still be viable nominations in years to come.

If Obama nominated one of them now, he or she would languish under the crushing weight of present political circumstances for months and months, only to be rejected by the Senate. Would they be nominated again after this time fails?

Critics would spend the next year digging around and tearing to shreds a perfectly respectable nominee. Hell, they might do it out of sheer boredom. It is, after all, a very long time before this mess gets resolved, if Senate Republicans don’t budge. All the while, the nominee gets to stay splayed out on the examining table, awaiting conservative vivisection.

The process itself could harm the careers of the younger short-listers. It will require time and energy and attention for many months to come. It’s not like these guys don’t have full schedules and professional ambitions already. Again, the costs may be worth it if the nominee makes it to the SCOTUS bench, but in this case that result is unlikely.

Merrick Garland, on the other hand, is old enough that a beating on the Hill won’t hurt any other real chance he would have had for a later nomination, because he doesn’t have any other real chance for a later nomination.

What’s the worst professional outcome for Judge Garland? He gets the (deserved) honor of being nominated for the Supreme Court, he gets politically martyred, then he goes back to captaining arguably the second most important court in the country, as the Chief Judge of the U.S. Court of Appeals for the District of Columbia. The rest of us should be so lucky.

Garland is not at a stage of his career where he pays a high price for playing this role.

All in all, that makes Merrick Garland the right man for this job.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

Topics

, , , , , , , , , , , ,