When Supreme Court Justice Antonin Scalia died, a great tremor of partisan political expectation rolled across America. For Republicans, the prospect of a liberal replacement to the titan of the conservative legal movement was a call to arms, and within minutes party leaders swore to block anyone President Barack Obama put forward, mustering their ranks for a fight.
Almost as quickly, Democrats seized on the political opportunity presented by the Republican opposition. An Obama pick who was a minority or a woman or both would provide a great opportunity for candidates across the country to attack their Republican opponents in the coming election. Beltway Democrats were already plotting attacks in Senate races where their chances would improve amid an ugly Supreme Court fight.
But with both sides lined up and ready to draw blood, Obama walked into the Rose Garden on Wednesday morning and called for a truce. In nominating Merrick Garland, the chief judge of the powerful Circuit Court of the District of Columbia, he picked a widely respected candidate with a centrist record who is not only qualified and represents the entire judicial branch but who provides neither side easy political plays.
Garland is a former prosecutor and long-time judge, well-liked and deeply respected in legal circles, if little known beyond them. He excelled in school and as a clerk on the Supreme Court. Most important perhaps, given the intense partisanship seizing the country this presidential election year, he represents the judiciary itself: he rose over 18 years to become the chief judge of the most influential court below the Supreme Court.
Not that Obama’s pick makes a partisan war over the nomination any less likely. Obama praised Garland’s record of public service, broad past support from Republicans and Democrats alike and said he was fulfilling his constitutional duty by nominating a judge who was “uniquely prepared to serve immediately.” But Garland’s chances of actually making it to the court depend largely on whether Republicans will see some advantage in confirming him if they lose the presidential election this fall.
Senate Majority Leader Mitch McConnell took the Senate floor moments after Obama’s announcement and reiterated his assertion that he would continue to block consideration of Garland’s nomination. “The decision announced weeks ago is about a principle not a person,” Senate Majority Leader Mitch McConnell said. He said the principle at stake was that voters should get to weigh in on the next nominee as part of their choice of President in November, and he said vice president Joe Biden had once advocated that position himself in different circumstances.
Privately, Republicans were flummoxed by Obama’s pick. One familiar with McConnell’s thinking said his team found the pick “baffling.” “This is a swing and a miss by the White House,” the Republican said, “This is not the kind of person who would fire up the liberal base.” And on that point at least, both sides agree. There was measured support for Garland among Democrats publicly after the announcement. Liberals in private reacted with frustration that Obama had picked a white male, denying them the chance to punish Republicans with attacks based on race or gender.
But those reactions may be the best validation of Obama’s choice, and of Garland’s qualifications as a nominee. Garland has few controversial positions. He is famous in the judiciary for picking first-rate clerks who often go on to serve as clerks on the Supreme Court. In 2010, fully six of his former clerks had gone on to work for Justices on the highest court, a record not likely to be matched soon.
Even the attempts to find material in Garland’s long record on the DC appeals court that can serve as weapons in the coming war over the nomination will be challenging. Some on the right hope to make a case against him based on the politically popular issue of gun rights. That argument is tenuous—it hinges on a procedural vote Garland made in the DC case that ultimately enshrined the individual right to bear arms. Garland voted unsuccessfully to allow the full DC court to review a case that would have banned much unlicensed gun ownership in the district. The case instead went to the Supreme Court where Scalia upheld the lower court ruling that the ban was unconstitutional.
For Obama, the Garland pick is valid on its face. It also gives the former Constitutional law professor a chance to make the case for de-politicizing the work of the judiciary. And if Garland somehow manages to make it to the court in the end, he will help burnish Obama’s claim to have tried, sometimes, to rise above the political fray.