The maxim that “no good deed goes unpunished” is often borne out in politics these days, and if President Barack Obama hasn’t taped it to his shaving mirror, he should.
In Merrick Garland, he found an ideal Supreme Court candidate, one whom, were the present roles reversed, a Republican president might have nominated and a Democratic Senate would have been obliged to confirm.
His credentials are impeccable: Ivy League degrees. Clerkships at a Court of Appeals and at the Supreme Court. Antitrust practice in one of Washington’s blue ribbon firms. Distinguished service in the Justice Department, where he supervised the investigations and prosecutions of the Kansas City, Unabomber and Atlanta Olympics bombings. A centrist record in nearly 20 years as a judge of the Court of Appeals for the District of Columbia Circuit, where he is now the chief judge, and where he befriended John Roberts, the current chief justice of the United States.
Garland is known as a diligent scholar who respects Supreme Court precedents, strives for consensus, and writes opinions that are “models of judicial craftsmanship,” according to Adam Liptak of the New York Times.
Seven still-serving Republican senators supported Garland’s confirmation to the Circuit Court in 1997. Among them is Orrin Hatch of Utah, who was quoted in 2010 as saying Garland would have made a “consensus nominee” for the Supreme Court and dropped his name after Antonin Scalia died. Now, the oleaginous Hatch is saying “Let the voters decide,” as if they didn’t already do that when they re-elected Obama.
At 63, Garland is a decade older than the usual Supreme Court nominee. The not-so-subtle message to the Senate majority is that a future Republican president might be able to fill the seat sooner than any Democrat might anticipate replacing Roberts.
Despite all that, Senate Republicans are still refusing a hearing on the nomination and most aren’t even willing to meet with Garland privately. They’re holding out in the hope that a Republican will be elected in November to nominate a conspicuous reactionary like Scalia. In so doing, they’re catering to the Koch brothers, the NRA, and other elements of the rabid right that actively oppose Garland.
What they might get instead, of course, is the nomination of someone younger and more liberal if a new Democratic president finds Scalia’s seat still vacant. While praising Garland’s qualifications and calling on the Senate to act, Hillary Clinton has been notably silent about whether she would resubmit his name in January 2017.
As for Bernie Sanders, he too has demanded the Senate act on the nomination, which he said he would vote to confirm. But he also said explicitly that if it does not, he would ask Obama to withdraw it so that he could nominate someone considered to be more progressive. Both he and Clinton are open about wanting the court to overturn the Citizens United decision, which she said would be a criterion for any justice she might appoint.
That’s where Obama must truly feel punished. Although the Democratic Party, most of its candidates and virtually all their center and left-of-center supporters are making hay — i.e., campaign contributions — out of the Senate majority’s position, their enthusiasm for Garland himself is notably muted.
Jeffrey Toobin, the New Yorker’s eminent authority on the Supreme Court, took note of this in writing that Obama’s choice reflected not only his “boundless faith in the meritocracy” but also his “distaste for the vulgar realities of politics.”
He could, Toobin continued, “have chosen a nominee who would rally his core supporters, and thus assist his party in races up and down the ballot.” The short-listed candidates included a woman, an African-American and an immigrant from India who are respected judges. But, says Toobin, “this President prefers technocrats to Democrats.”
That said, Toobin thinks it is “outrageous,” and I agree, for the Senate to act as if Obama were re-elected for only three years rather than four.
In signaling to their core voters — and more importantly, their allied lobbies — that the election will be in large part about the future of the Supreme Court, the Republicans have also made that quite clear to Democrats and independents. Fair enough.
Vote Democratic as if your life depends on it, because it does.
Although there have been three Democratic presidents since Lyndon Johnson, the Supreme Court has been controlled by Republican appointees since Warren Burger replaced Chief Justice Earl Warren in 1969. It would still be so even if Garland is confirmed.
Interestingly, Republican presidents have been almost as much in thrall of the meritocracy as Bill Clinton and Obama have been. Like Scalia and Garland, every present justice has an Ivy League law degree — all from Harvard, like Obama himself, or from Yale, like Clinton, except for Ruth Bader Ginsburg, who started at Harvard and finished at Columbia.
Moreover, the last justice who wasn’t Ivy League was Sandra Day O’Connor, also the last who ever had experience as an elected politician. O’Connor’s service in the Arizona Senate informed her vital role as a consensus builder and frequent deciding vote on the Supreme Court.
The present court’s deficiency in that regard is reflected in the frequent 5-4 splits over hot-button political issues such as Obamacare and campaign finance. This is a condition that impairs the legitimacy of the court in the public’s eyes.
Imagine if Brown v. Board of Education, the historic decision against racial segregation in public school, had been decided by anything less than a unanimous vote. Warren’s great service to his country, reflecting his background as California’s attorney general and governor, was to write the opinion in such a way as to ensure that it would be unanimous.
He wasn’t Ivy League either, by the way. His law degree was from the University of California at Berkeley.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in suburban Asheville, North Carolina.