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Merrick Garland Not The Right Pick For Supreme Court

| by Nicholas Roberts
Chief judge of the U.S. Court of Appeals for the D.C. Circuit, Merrick GarlandChief judge of the U.S. Court of Appeals for the D.C. Circuit, Merrick Garland

Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, is not going to become the next Supreme Court justice despite being nominated by President Obama.

Senate Republicans, led by Mitch McConnell, have pledged not to nominate a new justice until the next president is elected.  They confirmed their commitment to this path shortly after the president nominated Garland, with Slate reporting that McConnell and Judiciary Chairman Chuck Grassley outright refuse to meet with Garland.

As Slate's Jim Newell points out, Garland is 63 years old and has center-left inclinations, which makes him a perfect fit for Obama, ideologically speaking.  He is simply too old and too unreliably centrist in an election year which is seeing the American center increasingly hollow out within the Democratic and Republican parties.  He is, in other words, a placeholder candidate whom Obama believes can be used as a political weapon against the Republicans.

How is that?  As Newell highlights, Republican senators have often said nice things about Garland in the past. Republican Sen. Orrin Hatch of Utah suggested in 2010 that a Garland nomination would "sail through the Senate" and just last week recommended that Obama nominate Garland, who is in Hatch's words "a fine man."

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Funny then, that after President Obama nominated Garland, Hatch and other "establishment Republican" senators were nowhere to be found, except to say they are willing to meet Garland when they get around to it.

Obama's nomination of Garland will not earn him many plaudits with a Democratic base which has largely gotten tired of Obama's "centrist, establishment" appointments to key posts.  Instead of choosing a younger, perhaps female and nonwhite rising star within the Democratic Party which the base could rally around, Obama picked a centrist whom Republicans will have a tough time painting as a devoted left-winger.  

Perhaps Obama is just thinking strategically here.  But does he really believe that if the Republicans gain the White House in November, a Republican-dominated Senate will nominate a centrist like Garland?  Absolutely not; if this ends up being the case then Senate Republicans will most likely nominate a conservative agreeable to both the base and to the establishment.

Garland also has presided over some rulings which are unpopular with the conservative base.  National Review reports Garland sought to expand EPA powers under the Clean Air Act in 2002 and allowed Washington D.C. Mayor Adrian Fenty's appeal when a D.C. circuit panel let a ruling stand which struck down D.C.'s restrictive law on handguns.

So perhaps it will not be as difficult for Republican leaders to paint Garland as a true believer in left-wing causes to the base as Newell thinks.  He is a nominee that will not animate the excitement of the Democratic base in any significant sense, but may be as unpalatable to the Right as any other possible Democratic Supreme Court nominee.  Since there is very little chance Garland will be confirmed, it is most likely Obama's (and perhaps Garland's, as well) intention for Garland to simply be a placeholder for the nominee the Democrats actually want on the court, whether it is Sri Srinivasan, Paul Watford, or Jane Kelly.  

But the Senate Republicans' absolute refusal to even meet with Garland suggests that Obama could have been more 'risky' by nominating a more left-wing nominee that would have animated the support of the Democratic base.  In any case, the battle for the Supreme Court is currently tied to the fate of what happens to the Senate in November, which itself is tied to the fate of who becomes the eventual Republican nominee.

Click here for the opposing view on this topic.

Sources: Slate (2), National Review / Photo credit: Diego M. Radzinschi/The National Law Journal via New Yorker

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