It's being reported that President Obama this morning will name his choice to replace legal giant Justice Antonin Scalia on the Supreme Court. Judges Watford from the Ninth Circuit and Merrick Garland and Sri Srinivasan from the DC Circuit are said to be the finalists. Gone despite all the breathless giddiness are Loretta Lynch, Jane Kelley and District Judge Jackson Brown. Also no longer anywhere to be seen is the media's one-day darling, Gov. Brian Sandoval of Nevada, now forever consigned to Trivia questions.
The most noteworthy and depressing fact about Obama's selection is that it's a faux nomination. Almost no one thinks either that the nominee will have been chosen (a) for something other than his political utility in squeezing Republicans, or (b) that, once the squeezing runs its course, the nomination will so much as reach the floor.
Elections have consequences, as Barack Obama once proudly (and correctly) said. The consequence of the 2014 election was that voters, by a decisive margin, replaced Harry Reid with Mitch McConnell, and Pat Leahy with Chuck Grassley. Grassley and McConnell have said no hearing and no vote. They have the unity in the caucus to back it up, and they will.
The Republicans have two sound arguments for refusing to move.
The first is that voters should have a say on this crucial decision through the election now less than eight months away. I see no compelling refutation to that. Yes, we'll have eight months of possible tie votes (although the great majority of cases have not been 5-4), but better a few ties for a few months than 30 years of a Court changed in a new and unwelcome direction.
It would be a different matter if the country wanted the direction the Court will be headed with an Obama pick, but it doesn't. As I've shown in previous (and still unrefuted) entries, more than three-quarters of our people want the Court to be centrist, as it was with Scaiia sitting (40%), or more conservative (37%). Why, simply on account of media hectoring and academic finger-wagging, should the Senate help a lame duck President create, possibly for decades, a more liberal Court at loggerheads with the views of such a large majority?
For what it's worth, I'm reasonably sure the pick from this list will be Srinivasan -- a pleasant, good-looking man with a strong academic background, not much of a paper trail (what with less than three years as a judge), and the soothing demeanor -- for those who don't look too hard -- of a moderate. Garland, a white man in his sixties, carries no political punch at all; and while Watford is African American, that block is already pretty well tied into the Party (as Hillary's results last night show), so the marginal return to political scale is small. This leaves Srinivasan, who might at least momentarily stir the pot with Asian voters.
This is not how I think Supreme Court Justices should be chosen, not in the slightest, but I'm not in the White House.
This will be a hard game for the Republicans to win, but I like their chances for once. The bottom line is that Obama wants to move the Court in a direction the public doesn't -- on gun rights, free speech and possibly the death penalty. Those are things people care about, and that tends to be what wins in the end.
This was precisely my thinking this morning, Bill, but Prez Obama has now proved us both wrong. Interested to hear your take on Judge Garland.
As a matter of substance, I am now very interested to hear from C&C folks, putting entirely aside the politics, if you think a Justice Garland may be as good or better than a possible future appointee by Prez Trump or Prez Clinton (whom I think are the only two reasonably likely next Prez after last night's results)?
Well, Bill, both of us were wrong in predicting Sri.
Like you, I didn't believe that Obama would select someone like Garland who, as you note, has "carries no political punch at all." (So much for your belief, and mine, that Obama would select someone for "political utility in squeezing Republicans.")
I believe that Sri probably wasn't interested in being Obama's political tool with no chance of being confirmed (or even getting a hearing). He has a long career ahead of himself, with a nomination to the Court in the future possible. He had no reason to possibly derail his judicial aspirations by volunteering to become the focal point of this political battle.
But, back to Garland.
He has been descibed as "brilliant" and having a "definite pro-prosecution bent in criminal cases."
There is no doubt about his legal qualifications, right? Although having been described as a "moderate liberal" certainly raises concerns about his significantly shifting the balance of power on the Court.
Given his clear legal qualifications to serve on the Court, don't you believe that Garland should at least be given a hearing? Not that he comes out of committee. Not that he is confirmed. But simply given a hearing.
Yes, the Constitution doen't require a hearing be afforded. And, yes, as a political matter (with possible ramifications in the upcoming presidential and senetorial elections) the GOP might have decided a hearing isn't in the GOPs best interest. But as a matter of simple fairness and courtesy to a clearly qualified nominee, shouldn't Garland be afforded his "day in court" to make his case?
Doug,
If Garland is in fact a "moderate liberal," I believe a Trump nominee would be far more to the right. And a Clinton nominee far more to the left. But, as a practical matter, the ideology of their nominee will, obviously, depend to a great degree upon who controls the Senate in 2017.
If you're going to confess error, do it quickly.
I confess! Right timing; wrong judge.
I address the merits on my post that follows Kent's.