If there’s anything I don’t have, it’s sources inside the Obama White House. So I can only guess at the reasoning behind President Obama’s nomination of Merrick Garland to the Supreme Court Wednesday. What I can say is that Garland is, by any objective measure, a nominee of Supreme Court caliber who could make a historically influential justice.
Mitch McConnell, the Senate Republican leader, has already drawn a line in the sand against the Garland nomination, tweeting moments after the nomination that the president is trying “to politicize it for the purposes of the election.” The reality, however, is that this is perhaps the least political nomination Barack Obama could have made. In a sane world, that would make Garland’s confirmation more likely. In the world we live in, it probably makes it less likely.
That’s because Garland brings nothing novel to the demographic table. A graduate of Harvard College and Harvard Law, he brings no academic diversity to the Harvard-Yale bench. He would be the fourth Jewish Democrat on the high Court. Geographically, he shares Chicago roots with Obama but has been a resident of deep-blue Maryland for a generation. He is first and foremost a member of the Eastern legal establishment—what Adam Liptak of The New York Times once cogently dubbed the “Acela Circuit.” He comes out of the cozy elite world of D.C. big-firm practice and the Clinton-era Justice Department. Like Justices Samuel Alito and Sonia Sotomayor, he is a former prosecutor. His current court, the D.C. Circuit, is amply represented on today’s Supreme Court—its alumni are Chief Justice John Roberts and Associate Justices Clarence Thomas and Ruth Bader Ginsburg.
In fact, Garland would have been the ideal conciliatory nominee in a world in which the Senate leadership had signaled even the slightest openness to compromise. Garland is nobody’s raging liberal, and he is widely liked and respected. (To that end, Republican Senator Orrin Hatch even recently said, “[Obama] could easily name Merrick Garland, who is a fine man,” before noting that the president probably wouldn’t for political reasons. Nonetheless, Hatch will dutifully oppose the fine man—despite, in 2010, calling Garland a “consensus nominee” who there was “no question” would be confirmed.) Garland served as a federal prosecutor in the Bush I administration. His most famous work, as Obama underlined in his announcement of the nomination Wednesday, was leading the investigation and indictments in the Oklahoma City bombing case.
Despite his experience with terrorism prosecutions, however, he has displayed independence from the government in some high-profile cases, most particularly the 2008 case Parhat v. Gates, in which a D.C. Circuit panel held that the government’s evidence—much of which had been supplied by the Chinese government—against an ethnic Uighur from China was not sufficient to permit the indefinite detention of the detainee. Not only did Garland’s opinion uphold that verdict and reject the government’s argument, he ridiculed it: “Lewis Carroll notwithstanding,” Garland wrote—a reference to the nonsense poem “The Hunting of the Snark”—“the fact that the government has ‘said it thrice’ does not make an allegation true.”
The Democrats in the Senate, and the Washington advocacy groups, will line up behind the Garland nomination with varying degrees of enthusiasm. Whether the nomination will have legs in the country, however, is less clear. In order to be confirmed, Garland will need to stir support in the swing states, where Republican senators are elected. He is a judge’s judge and a lawyer’s lawyer. Demographics are a potent card to play in such a struggle; Obama has forgone that. Great lawyers in and of themselves, alas, sometimes do not arouse public passion.
There are two possible interpretations of the president’s Garland strategy. The first is that Obama is playing on Republican fears of whomever a President Hillary Clinton might tap for the role and is trying to lure the Republicans into confirming an older, more moderate nominee. If they are successfully lured, then mission accomplished. If, however, Obama does not lure Republicans into confirming Garland, he will have at least embarrassed them and exposed the nakedly political nature of their tantrum.
The second interpretation—which I incline to—is that the meritocratic Boy Scout in Obama has called this shot. Garland is a terrific nominee and would make a wonderful justice. As Norman Ornstein of the American Enterprise Institute said Wednesday morning, Obama almost certainly made the pick “because he thought this was the best possible choice for the Supreme Court.” Obama might be unwilling to pass up a chance to make such an appointment, and to the extent there is political calculation behind it, the president is banking on the residual idealism of some Republican senators to respond. He may believe there is at least some chance Garland will be confirmed. If so, his belief in that reservoir of public spirit is a testament both to his own generosity and to his persisting naïveté.
Of course, the idea that Garland, at 63, is an older nominee who would serve a shorter time on the Court and pose less danger to the conservative legal agenda assumes facts not in evidence. Almost exactly a century ago, another Democrat named a Jewish nominee in an election year. The nomination was deeply controversial, and the Senate delayed hearings and a vote for four months—still a record for delay. The nominee was Louis D. Brandeis. He was 59 years old. Nearly a quarter-century later, at 82, he retired as perhaps the most influential liberal justice in American history.