When President Barack Obama announced the nomination of Judge Merrick Garland to the U.S. Supreme Court, I was disappointed.
Garland is widely considered to be a center-left jurist or a moderate, but the Supreme Court needs a justice who is more liberal to balance the court. The right wing of the court is more conservative than the left wing is liberal. Over the years, the court has shifted further to the right, so much so that court watchers have viewed some of the liberal justices as closer to the center. Obama’s nominee could have restored the balance and corrected the misdirection of the court’s trajectory.
Also, Garland looks like almost every other Supreme Court justice in the court’s history. He is white; 107 of the 112 Supreme Court justices have been white men. This should in no way be disqualifying, but it is also important that members of the court bring a diverse set of experiences to their decisions. The importance of allowing people who are neither white nor male to point to at least one Supreme Court justice who looks like them should not be underestimated.
And, Garland is in his early 60s, which makes him the oldest nominee to the court since President Richard Nixon nominated Lewis Powell. Garland’s time on the court would likely be shorter than many of his colleagues. This could again place the court in a precarious position in the not-too-distant future.
But disappointment turned to admiration. Obama is nothing if not strategic.
On the very day Justice Antonin Scalia died, Republican senators announced that they would not give Obama’s nominee a hearing – they would not fulfill their constitutional duty to “advise and consent.”
Republican senators have made the specious argument that because this is an election year, Obama should not fulfill his constitutional duty to nominate a justice to the court. The senators have claimed that we should wait for the American voters to weigh in before picking a new justice. But the truth is that the voters have weighed in – twice. They re-elected Obama to a four-year term, not a three-year term. The Republicans’ argument is, as Scalia might have put it, pure applesauce.
This tactic is problematic regardless of which party uses it. Then-Sen. Obama’s decision to join the filibuster against Samuel Alito is one example.
If the Republican-controlled Senate will not give Obama’s nominee a hearing, he was right to nominate someone who unquestionably deserves a hearing – the chief judge for the U.S. Court of Appeals for the D.C. Circuit.
Republicans have in the past and continue to praise Garland. In 1997, Sen. Orrin Hatch of Utah said Garland was “highly qualified to sit on the D.C. circuit,” and added that “he is not only a fine nominee, but is as good as Republicans can expect from (the Clinton) administration.” Just last week, Hatch suggested that Obama “could easily (nominate) Merrick Garland, who is a fine man.” Given that praise, one would think it would be awkward for them to deny Garland a hearing. And it is. But they will.
Obama’s nomination may pay off regardless of whether or not Garland gets a hearing. If Republican senators deny him a hearing, they risk frustrating the electorate, and frankly looking like quite a petulant bunch. If Garland gets his hearing, it will be incredibly difficult to argue that someone with his credentials is not qualified for the job, and he is likely to be confirmed. That may be as close to a win-win as we get in the current political climate.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and president of the Los Angeles Ethics Commission. She blogs at PoLawTics.lls.edu. Follow her on Twitter @LevinsonJessica.