Cortney wrote yesterday about how some are saying that Merrick Garland is the most conservative judge ever nominated to the Supreme Court by a Democratic president, though his record on gun rights is less than stellar. That alone should have conservatives highly suspect of this nomination, though he may be the best Senate Republicans have got to work with concerning any secondary protocol if it looks like Hillary is going to win in November. That’s the gamble if that situation looks more than likely in a few months time: confirm Garland to prevent a Clinton progressive taking Scalia’s vacancy (Garland has enraged liberals in past decisions), or hope that the GOP somehow wins which isn’t going to happen if Trump is nominated. Regardless, for those supporting the “confirm Garland to avoid something worse” argument, it doesn’t help that he was also called a good progressive that could prevent the supposed conservative bent in the Supreme Court in 2010, along with someone who would
Concerning the third front-runner, however, there has been precious little hubbub. The candidate in question is Merrick Garland, a Bill Clinton appointee to the U.S. Court of Appeals for the D.C. Circuit. Garland is well known, well respected, and tremendously well liked in Washington legal circles; even Republicans have nice things to say about him (which has both advantages and disadvantages, about which more shortly). Yet Garland also happens to possess certain qualities that are, shall we say, politically suboptimal. He is white. He is male. And he’s 57 years old—compared with, say, Kagan, who at 49 offers Obama a chance to leave his mark on the court for perhaps an additional decade.
Three strikes and Garland’s out, you say? Well, you may be right. But that would be a real shame—because the case for making him one of The Supremes is, in fact, compelling. For Obama, who is said by some of his advisers to be more keen on finding a liberalish version of John Roberts than a hard-left incarnation of Antonin Scalia, Garland’s juridical rigor, even temperament, and intellectual firepower should be attractive. And although he is more centrist than many of the other short-listers, his consensus-building skills might make him, paradoxically, the best progressive hope for staving off the court’s ever more conservative tilt.
From the progressive perspective, Garland isn’t perfect, to be sure. (But then who is? Or, rather, who is that’s actually confirmable on the planet we currently inhabit?) Liberals concerned with preserving what’s left of the Warren Court’s legacy on criminal law will find his record too prosecution-friendly for their tastes. And Garland has shown none of Stevens’s invaluable penchant for the occasional thundering dissent—see his scorcher in the Citizens United campaign-finance case—that both provides a liberal touchstone and reminds the world just how far the court has lurched to the right.
But these are quibbles. On some of the most important issues facing the court—the environment and labor law, to name two—Garland is every bit as progressive as Stevens, and much more so than the older judge was when he arrived on the high court. And Garland’s tendency toward statutory deference (a conservative principle, in the proper meaning of the term) should be seen as a crucial quality by Obama, among whose main goals with this pick must be to protect the legislative gains of his presidency.
The Washington Free Beacon reported today that Garland had also worked on various Democratic political campaigns. Should this matter? No. It shouldn’t. Prior to Bork nomination in 1987, credentials, and whether the candidate was qualified, were the basis of most of the hearings for judicial nominees. We can thank Sens. Joe Biden and Ted Kennedy for destroying that process. It’s now a political sideshow used to energize each party’s respective bases, or to embarrass the current administration. But alas, thanks to Joey and Ted, it does cast doubt as to whether Garland is truly independent of what appears to be decidedly liberal leanings in his decision-making process. For those saying that Garland is the best we have, you could also make the argument that he could be a trojan horse?