Few believe Merrick Garland has a chance of actually being confirmed in this session of congress. But, in the highly unlikely event he is confirmed, according to the “Martin-Quinn scores” ranking judicial ideology, Garland would make the High Court “the most liberal in decades,” report Alicia Parlapiano and Margo Sanger-Katz at The Upshot. The authors show that Garland or Justice Stephen Breyer would become the new ‘swing vote’ on the Court.
AP’s Josh Lederman argues that “By nominating an uncontroversial 63-year-old judge, President Barack Obama handed Republicans an unwelcome election-year proposition: Give in or risk letting Hillary Clinton or Donald Trump pick a Supreme Court justice the GOP might like even less…Republicans loathe Clinton, but they recognize that if she wins the presidency, she could nominate someone far more liberal than Garland, who’s regarded as a centrist.”
A couple of weeks ago Jesse Wegman noted in his NYT editorial page editor blog, that “In the weeks since Justice Scalia’s death, at least half a dozen polls have asked Americans who they think should pick the next justice. Each one has found that people want President Obama to name a choice. A CNN/ORC poll released Thursday found that two-thirds of Americans, including majorities of Democrats, Republicans, and independents, want the Senate to hold hearings on an Obama nominee.”
In his Daily Beast post, “D.C.’s Dueling Supreme Court Strategies,” Jay Michelson notes, “”They are establishing a precedent, if they do this, that if you don’t like the president, you never have to have a vote. Ever,” said Sen. Tim Kaine (D-VA), who argues that the obstruction flies in the face of the constitutional order of government. “What this is about is, ‘We don’t like this president and so we are going to refuse to entertain any discussion of the president’s nominees.'””
Carle Hulse explores how “Supreme Court Showdown Could Shape Fall Elections.” Hulse writes that, in one scenario, a Democratic takeover of the Senate in the November elections might force a lame duck session confirmation: “That possibility led some jittery Senate Republicans to suggest they might be willing to take up the nomination of Judge Garland in a postelection lame-duck session, preferring the relatively moderate and known commodity of Mr. Garland to the uncertain choice of a future Democratic president.”
Ed Kilgore calls the Lame Duck idea a “convoluted scenario whereby Garland might be confirmed. However, observes Kilgore. “Even then, many conservatives in the Senate would shrink from the intraparty consequences of voting for a baby-killing defender of executive tyranny. But that could be the only way Garland makes it to the Court.”
The New York Times editorial board says, “If you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland…In his 19 years on the bench, Judge Garland has established a solidly centrist voting record that reflects no strong political ideology. He has sided with the government in cases involving habeas corpus petitions from detainees at Guantánamo Bay, and has voted against criminal defendants more often than his liberal colleagues have. He has generally voted in favor of deferring to the considered decisions of federal agencies. In civil rights cases, he has voted in favor of plaintiffs who have claimed rights violations.”
If you needed further evidence of President Obama’s prowess at political chess, try this paragraph from Lincoln Caplan’s New Yorker article “Merrick Garland, President Obama’s Sensible Supreme Court Choice“: “The day the President told Kagan that he planned to nominate her for the Supreme Court, in May of 2010, the Times ran a story saying that Garland “was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation”; that Senator Orrin Hatch, the Republican from Utah, “privately made clear to the president that he considered Judge Garland a good choice”; and that “Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support.”
As an election ploy, Garland’s nomination should shine an unwelcome spotlight on GOP obstructionism, causing Republican senators in blue states to cringe, hem and haw as they struggle to justify opposing such a highly-qualified centrist. John Healey’s L.A. Times op-ed “Garland nomination to Supreme Court could put GOP in no-win situation” illuminates the other half of their dilemma: “if Republicans allow Garland to be confirmed, their core constituencies are likely to feel betrayed regardless of what anyone says about how reasonable and non-ideological the judge may be. And with control of the Senate hanging in the balance, and Republicans having more incumbents facing reelection than Democrats do, the last thing the Senate GOP can afford to do is to discourage its political base.”