On a beautiful spring day last week, President Barack Obama strolled into the Rose Garden and executed what might be the most brilliant political move of his presidency. He introduced Merrick Garland, an unimposing figure who was visibly moved by his nomination to the highest court in the land. The 63-year-old jurist called it “the greatest honor of his life” before correcting himself, noting that he could not forget the comparable honor of his wife agreeing to marry him. Garland came off as incredibly likable and given the political climate, the president’s move is ingenious. And yet I cannot help but be partially disappointed.
In all likelihood, Merrick Garland will sit on the Supreme Court. Nothing is definite, and I will avoid making the brash claims that some senators and journalists have made over the course of the last week, but the current situation favors President Obama and his party in a handful of ways; therein lies the genius. Senate Republicans have made it abundantly clear that their position will not change. Majority leader Mitch McConnell commented that the GOP’s unwillingness to consider any nominee was “about the principle, not a person.” Just six senators have indicated they would be willing to meet with Garland, and only Mark Kirk (R–Ill.) has called for an up-or-down vote. There will be no vote before the election in November.
For Democrats hoping to reclaim the Senate and for Hillary Clinton, Obama’s pick is great news. What better demonstration of Republican obstructionism than refusing to even hold a hearing for someone who is consistently said to be moderate, fair and qualified? According to the Martin-Quinn scores, ironically, Garland would sit firmly on the court’s liberal wing; but what matters is the public perception and the narrative that voters see played out in the media — that he is a centrist and an effort at compromise on the part of the president.
How can GOP senators like Pat Toomey, Kelly Ayotte and Rob Portman, all seeking reelection in battleground states, defend this action? Add in Donald Trump as the presumptive nominee and suddenly the Republican Party becomes defined by immaturity in 2016. Meanwhile, Merrick Garland not only paints the Democrats in the light of maturity and compromise, but he also highlights hypocrisy and partisan gridlock on the other side of the aisle.
Recently, the prospect of a confirmation vote after the election was ruled out by Senate GOP leadership, with McConnell saying he “can’t imagine that a Republican majority in the United States Senate would want to confirm in a lame-duck session.” But talk is cheap. Should Hillary Clinton or Bernie Sanders win in November (not exactly a tall order against The Donald), why would conservatives wait for the next, undoubtedly more liberal, nominee? The next president will nominate two to three justices to the Court as it is, and if the Democrats win big in November, rejecting Garland would mean allowing a sizable liberal majority. Obama’s nomination of a centrist allows him to play good cop/bad cop with his successor, which strengthens Garland’s chances at confirmation.
For all of these reasons, the nomination of Merrick Garland is a demonstration of impeccable political strategy on the part of the White House. But that doesn’t mean he’s the perfect nominee for the country, especially for the seat he is about to fill.
Antonin Scalia, though a staunch conservative with little in common with Garland, was a vocal advocate for diversity on the bench. In his dissent from the ruling in Obergefell v. Hodges, the case that ruled same-sex marriage constitutional, Scalia bemoaned how unrepresentative he and his colleagues were of the country at large. The Court, he wrote, “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School,” and Garland would continue this trend. Before Scalia’s passing, eight justices grew up on either the East or West Coast, with four coming from New York City alone. All but one have been a circuit court judge. Garland would make the fourth Jewish justice on the Court and the fifth white man.
Writing opinions takes more than legal expertise — it often takes life experience. When conferring on civil rights cases in the late 20th century, the justices turned to Thurgood Marshall for his experience as an African-American man in a previously segregated society. When deciding cases on the topic of campaign finance, Sandra Day O’Connor, the only justice at the time who had ever run for office in her career, shed important light on the context of the legal question. But what does Merrick Garland bring in terms of diversity? He’d be the only justice on the bench from Illinois. That’s about it.
No one can deny that Merrick Garland’s nomination is a political move. Whether it’s meant to embarrass Senate Republicans or give Hillary Clinton a boost with moderates in November is yet to be seen. But what is nearly certain is that President Obama’s third nominee to the Court is brilliant, fair-minded and professional. Given the current political landscape, he will likely sit on the Supreme Court someday in the near future. Unfortunately, this comes at the cost of judicial diversity, which may have to wait for the next administration.
Brett Graham can be reached at email@example.com.