MARCH 17, 2016
President Obama had been warned.
The day that Supreme Court Justice Antonin Scalia died, his body was not even cold when Senate Majority Leader Mitch McConnell (R-KY) rushed to the microphones to warn the President that Senate Republicans would stand in lock step to insist that the appointment of a new Justice not be made until the next President takes office in 2017, and if President Obama dared to make a nomination, his candidate would not receive any courtesy interviews with senators, have a hearing or get a vote on the floor of the Senate.
Has McConnell learned nothing these past seven years? You don’t threaten Barack Obama.
The President gave his answer early Wednesday morning when he said he would put forward a nominee and that the name would be announced at an 8am EDT Rose Garden ceremony.
Given the President’s track record of nominating and successfully confirming a woman (Elena Kagan) and a Latina (Sonia Sotomayor), progressive activists logically thought the favorites might be Paul J. Watford, a 48 year-old African-American jurist from Southern California or Sri Srinivasan, 49, an Indian-American judge from Virginia. Both have previously been confirmed by the Senate with widespread Republican support.
To the shock of many observers, Obama announced that his choice was Merrick Garland, a 63 year-old white man who has been serving as Chief Judge of the D.C. Circuit Court.
I didn’t see that coming.
Outrage was immediate on both sides. Within an hour of the selection, McConnell took to the floor of the Senate to express his shock that Obama had chosen to defy his warnings by actually announcing a nominee and reiterated his threats that there would be no interviews, no hearing and no vote on Garland.
If possible, there was even more outrage on the left as progressive leaders expressed a feeling of betrayal by the President. He had probably his last chance to appoint a progressive minority, and he wastes his pick on an aging white man? It appeared that consensus on the left that Garland was a terrible choice.
I respectfully disagree. I think that Obama’s choice was not only a shrewd choice but possibly a brilliant one as well. Here’s why:
The color of Judge Garland’s skin is irrelevant to the Senate Republicans — they’re in a mood to oppose anyone associated with Barack Obama. But Republicans clearly anticipated yet another minority firebrand as the President’s nominee and were ready to dump on that candidate as a pawn in Obama’s Big Agenda. The fact that he nominated a quiet, reserved white sexagenarian ran totally counter to their expectations and seemed to befuddle them.
What’s even more delicious is that many of the Republican senators (including influential Judicial Committee member Orrin Hatch of Utah), who now swear that they would not even meet with Judge Garland, praised him to the hilt when he was nominated to the D.C. Circuit in 1997. (There’s lots of video tape to prove it.) Several reporters who have covered the Supreme Court for years have noted that when Republicans voted against Judges Kagan and Sotomayor, a number of GOP senators confided that had the nominee been Judge Garland, who as a lawyer prosecuted both the Unibomber and Timothy McVeigh, they would have easily approved him.
Best of all, if Judge Garland happens to become the victim of Republican obstruction and is not confirmed, Judges Watford and Srinivasan would remain unscathed by the defeat, and these 40-something jurists, who could be on the Court for 30+ years, would be available for President Hillary Clinton, if that comes to pass.
What was surprising to many was that, with Republicans warning that this nomination was dead in the water, such a distinguished jurist as Judge Garland would even consider joining a campaign that could end in humiliating defeat. Those close to the judge explained that he believes in the judicial process, and by agreeing to be a sacrificial lamb, he would be honoring that process. But not all is lost yet.
On Thursday morning, the Republican wall of solidarity began to crack just a little when 5 GOP senators from Democratic-leaning states who face a tough re-election bid ahead, especially if Trump is the nominee, defied McConnell and said that they would be willing to meet with Judge Garland. If Trump is looking more and more like the nominee, expect more GOP senators to come on board, if only to save their own skins.
Obviously, McConnell is trying to wait out the clock until the inauguration of President Donald Trump. But if it’s President Hillary Clinton (and a Democratic Senate after the Trump fiasco), McConnell is going to long for the day that he had Judge Merrick Garland to confirm.
