President Barack Obama might be unable to get Merrick Garland confirmed to the Supreme Court, but picking him over more liberal candidates could make life difficult for Republicans.
White House officials spent Wednesday describing Garland as “highly qualified” and a “thoughtful, meticulous jurist.” Obama, during a Rose Garden ceremony , said his career shows all “traditional marks of excellence.” He also trumpeted Garland’s prosecutorial background, highlighting his management of the federal probe into the 1995 Oklahoma City bombing.
By selecting the non-controversial, 63-year-old Garland, Obama is sending the GOP-run Senate a chief judge on the U.S. Court of Appeals for the District of Columbia Circuit who in 1997 was easily confirmed, 76-23. But just hours after a Supreme Court seat was vacated by the Feb. 13 passing of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell, R-Ky., vowed the chamber would not take up any Obama nomination.
The lame duck president in the last year of his administration is essentially trying to back Republican senators into a corner, experts say. The only way out, he and his aides will argue, is for senators to confirm a nominee who will likely draw few major substantive objections or to explain how his decisions on the D.C. Circuit justify strong objections.
The president “thought long and hard about this,” said Brian Deese, a senior advisor to Obama. The decision was about Garland’s qualifications not the “potential deficiencies” of any other candidate, he said, adding the nominee has during his long judicial career earned the “respect of conservatives, progressives and those who have fallen on both sides of cases” on which he has ruled.
But in perhaps his most telling statement, Deese said Obama determined his fellow Chicagoan is “the best candidate for the circumstances we find ourselves in right now.”
Lanae Erickson, who tracks judicial nominees for the Third Way think tank, said Garland or someone around his age had “a much higher chance of being nominated right now because this is really about making the Republican Party look bad -- perhaps the president [decided to] go with a nominee who feels this is their last chance.
“Most people realize the Republicans have made it really clear they’re not going to confirm someone,” she said. Should Democratic presidential front-runner Hillary Clinton win the White House, “she probably wouldn’t nominate Garland because she would want someone in their 50s” who might serve on the high court for as long as three decades.
“The situation here is different because there are extenuating circumstances,” Erickson said.
Senate Democrats believe Garland’s nomination and continued intransigence by Republicans could alter the outcome of November’s presidential and congressional elections.
Judiciary Committee member Christopher S, Murphy, D-Conn., said Democrats must “take this fight not just to the floor of the Senate but to every state across the country.
“The American people understand the narrative of Republican shutdown politics,” Murphy said. "This is more of the same. Now they're seeing them shutdown the Supreme Court."
And Jon Tester of Montana, the Democratic Senatorial Campaign Committee chairman, said of Republicans: “The fact that they're going to not follow the Constitution, I believe is going to have implications on this election."
The White House has been signalling in sometimes opaque and sometimes direct language that Obama probably would opt against sending the Senate a bold, liberally inclined candidate. On a call with reporters Wednesday, aides said Obama was intent on “playing it straight” as he selected a nominee.
During a March 10 press conference with Canadian Prime Minister Justin Trudeau, Obama told reporters he was seeking “an outstanding jurist, who has impeccable legal credentials, who, by historical standards, would not even be questioned as qualified for the court.”
The president emphasized the importance of his eventual nominee’s stances on following the Constitution and “things like stare decisis and precedent.” Also important, in Obama’s own words, was someone he felt “understands the necessary humility of a judge at any level in looking at statute, looking at what the elected branches are doing, is not viewing themselves as making law or in some ways standing above elected representatives.”
White House officials and experts say Garland easily clears all those thresholds.
“Chief [Judge] Garland doesn’t meet those criteria, he exceeds them,” Deese said.
Progressives backing a bolder pick likely took solace in something else the president said last week. He stated he was looking for a nominee that “recognizes the critical role that [the Judicial] branch plays in protecting minorities, to ensuring that the political system doesn't skew in ways that systematically leave people out, that are mindful of the traditions that are embedded in our cherished documents, like the Bill of Rights.”
Obama ultimately decided Garland also meets those standards. And, as a non-controversial caucasian male whom the Senate previously overwhelmingly confirmed, he also meets another because, on paper and the campaign trail, he appears a perfect fit for a Democratic president facing a confirmation fight in a Senate where Republicans control 54 of the needed 60 votes.
“He makes sense if it is a political pick,” said Barbara Arnwine, president of the Transformative Justice Coalition and a longtime law professor. “But it’s the equivalent of Lucy and the football because I don’t see any basis in seeing that you’re going to get any of the Republican senators to jump ship and support him.”
That sentiment was widely shared on Wednesday by the president’s supporters and critics alike.
“With Garland nomination, @POTUS is putting @GOP blockade to max test,” former senior Obama aide David Axelrod tweeted. “By any measure, he's highly qualified, temperate & broadly acceptable.”
Arnwine wanted Obama to submit a bolder, more-historic name -- that of an African-American woman. The court has never had a black female jurist.
“Of the potential African-American female nominees who were mentioned [publicly] and are about his age,” Arnwine said, “I don’t think Garland out-distances any of them.”
But an African-American of any gender with a clearly liberal legal background likely would have only further driven GOP senators into their bunker. To that end, White House officials gleefully pointed out about an hour after the Rose Garden ceremony that a handful of Republicans already had backed down on one pledge, saying they would meet with the nominee.
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