Obama Hopes His Supreme Court Pick is Too Moderate to Fail

March 16, 2016, 4:57 PM UTC

President Barack Obama’s nomination on Wednesday of appeals court judge Merrick Brian Garland to succeed Associate Justice Antonin Scalia on the U.S. Supreme Court may have been determined as much by game theory as by jurisprudence.

Obama’s choice of Garland, 63—who has been a member of the U.S. Court of Appeals for the D.C. Circuit since President Bill Clinton appointed him 19 years ago, and who has been its Chief Judge for the past three years—suggests that the President still holds out hope of shaming the opposition into approving his nomination. Republican leaders have already vowed not to even give his choice a hearing.

Garland is a moderate liberal who is reputed to be highly admired by his conservative colleagues. In 2010, when he was among the candidates then being bruited for the Supreme Court seat that eventually went to Justice Elena Kagan, Garland received high praise from influential conservative Republican Senator Orrin Hatch of Utah, a past Senate Judiciary Committee chair, who told Reuters then that he’d support him, that he’d be a “consensus” nominee, and that he’d be approved “no question.”

In President Obama’s speech announcing Garland’s nomination on Wednesday morning, he stressed the judge’s “decency, modesty, integrity, even-handedness, and excellence,” and noted that Garland had earned “respect and admiration from leaders on both sides of the aisle.”

Over the past seven years, Obama said, in all his conversations about prospective Supreme Court justices with Senators from both parties, the one name that most often came up was Garland’s.

In a brief and humble acceptance speech, Garland repeatedly battled back tears. “This is the greatest honor of my life,” he said, “other than [my wife] Lynn’s agreeing to marry me 28 years ago.”

After Tuesday’s primary night results—suggesting that an imploding and splintering Republican Party might conceivably lose not just the Presidency in November but control of the Senate, too—some Republicans might even wonder if grabbing a middle-aged, moderate now might be better than getting stuck with a younger, more dogmatic liberal, whom an empowered President Hillary Clinton might be able to cram down on them next year.

Nevertheless, Obama’s choice of Garland was a bit of a surprise. The betting money among Supreme Court practitioners seemed to have been on Sri Srinivasan—a much younger judge (48) on Garland’s court who had a shorter paper trail, had recently been approved 97-0 (in 2013), and would have been the first South Asian to serve on the Supreme Court.

Still, other pundits had expected Obama to take an entirely different tack—a more politically motivated one. Had the President been willing to abandon all hope of actually filling the post, he might have backed a black woman, like federal district judge Ketanji Brown Jackson, 45, of Washington, D.C.; or a black man, like federal appeals court judge Paul Watford, 48, of the U.S. Court of Appeals for the Ninth Circuit (in San Francisco); or a white woman (and former federal public defender) like federal appeals court judge Jane Kelly, of the Eight Circuit (in Cedar Rapids, Iowa). The refusal of Republicans to even hold a hearing to consider such a choice, the thinking went, would have infuriated and invigorated the Democratic base, by adding a gender- or race-discrimination overlay to the garden-variety obstructionism charges that Senate Majority Leader Mitch McConnell of Kentucky and Senate Judiciary Chairman Charles Grassley of Iowa are obviously willing to live with.

Garland’s nomination also fails to address a criticism one has sometimes heard from both the left and the right in recent years: that the Court’s current members—every one of whom went to Harvard or Yale, none of whom ever held elected office, and seven of whom sat on federal appeals court’s before their elevation—has become too insular, elite, homogeneous, and removed from the people.

Garland’s appointment won’t change that situation. After growing up and attending public schools near Chicago, he graduated from both Harvard College (summa cum laude) and Harvard Law School (magna cum laude). (If approved, Garland would be the fourth Jewish justice on the Court, with the other five being Catholic. There are currently no Protestants.)

Garland then clerked for a legendary federal appeals court judge in New York, Henry Friendly, who is thought of as the consummate apolitical jurist and judicial craftsman. Chief Justice John Roberts also clerked for Friendly.

But whereas Chief Justice Roberts then went on to clerk for the most conservative justice on the court at the time—Associate and later Chief Justice William Rehnquist—Garland next clerked for the leading liberal of the day, Justice William Brennan, Jr.

After that, Garland became a partner at one of Washington, D.C.’s premier corporate law firms, Arnold & Porter, before becoming a federal prosecutor and, eventually, a top official in the criminal division of the Department of Justice, overseeing the Oklahoma City bombing case.

In March 1997, he ascended to the appeals court, having been confirmed by a 76-23 Senate vote, which included support from 30 Republicans (a majority of them).

During his period on the D.C. Circuit, Garland’s rulings have engendered some controversy from gun-rights advocates—a potential obstacle for even those Republicans who are willing to entertain the nomination to begin with. In 2007, Garland cast a vote that suggested that he might have been willing to uphold a tough D.C. gun control law that the U.S. Supreme Court later struck down by a 5-4 vote in the landmark decision of District of Columbia v. Heller.

President Obama closed his speech Wednesday morning by beseeching the Senate to consider Garland and give him an up-or-down vote.

“I’ve fulfilled my constitutional duty,” he said, “now it’s time for the Senate to do theirs.”

If the Senate refuses, he said, “the reputation of the Supreme Court will inevitably suffer,” as would “faith in our justice system” and “our democracy.”

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