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.