SCOTUS Jujitsu

Progressives Should Applaud President Obama’s Nomination of Merrick Gardland To The Supreme Court

Obama finds a way to expose Republicans, and clear a path for a President Clinton or President Sanders to walk down.

I’m among those perpetually frustrated by President Obama’s propensity for centrism and compromise – but his centrist, compromise nomination of Merrick Garland to the Supreme Court may actually be brilliant political jujitsu.

The first thing for progressives like myself to know is that, by most accounts, Garland is not an offensive choice. Sure, he doesn’t check every left wing box — he’s a former prosecutor who tends to vote more conservatively on criminal justice cases – but experts and advocates largely agree he’s more liberal than not. And sure, picking him does little to expand the racial or gender diversity of a Supreme Court that was comprised entirely of white men for almost two centuries.

But this is where, I think, Obama betrays his strategy—because while Obama might not be a dyed-in-the-wool progressive on policy issues, it’s hard to imagine that the man who selected Elena Kagan and Sonia Sotomayor for his first two Supreme Court nominations suddenly thought to himself, “You know the Supreme Court needs? Another old white man!” So what was he thinking?

Simply put, in a political dynamic in which Senate Republicans have pledged to make President Obama’s Supreme Court nominee “a piñata,” Merrick Garland is one hell of a hard guy for the right to hit. As Josh Kraushaar, politics editor of the conservative National Review, tweeted after news of Garland’s nomination was leaked, “Wow: Quite the curveball. White moderate judge. Difficult politically for GOP to oppose”. Difficult because he’s white or difficult because he’s moderate or difficult because of the magical alchemy of both?

And then there’s this: Republicans have got to be looking at the polling that shows 63% of Americans think the Senate should do its job and hold hearings to fill the Supreme Court vacancy. And that was before there was even an actual nominee to put a human face on Republican obstructionism. Meanwhile, Republicans must also be aware of polling that shows Hillary Clinton soundly beating the now-likely Republican presidential nominee Donald Trump, and Sanders also beating him.

And if Republicans do lose the presidential election, here’s my guess about what happens then: Obama would withdraw Garland’s nomination, before Senate Republicans could rush to approve him. By then an actual lame duck, he could appoint an actually radical choice. I favor Justice Department Civil Rights chief Vanita Gupta, but my friend and Slate Supreme Court columnist Dahlia Lithwick makes a compelling case for Stanford Law Professor Pam Karlan or prominent anti-death-penalty attorney Steve Bright. Either way, Obama would have nothing to lose politically in making a Hail Mary as-political-as-possible nomination because he would have no more elections to run in and the Democrats would have already won the election to succeed him.

Sure, maybe that candidate doesn’t get a vote from a now even more resentful Republican Senate. Or maybe they vote that person down, to take a proper hit at the new piñata Obama’s placed before them. Either way, that means President Clinton or President Sanders takes office with a fresh slate, and a clear mandate.

And that prospect, especially with the chance that Democrats might also regain control of the Senate, can’t sit too well with Republicans. They may try to argue that President Obama does not have a sufficient mandate to fulfill his Constitutional duty despite the fact that over half of the population elected him just three years ago, but there’s no way to say that after the country elects another Democratic president.

And that next Democratic President won’t feel obligated to re-nominate Merrick Garland. Had Obama named a more historically significant nominee to the bench — say Sri Srinivasan — there might have been pressure, especially from the left, for Obama’s successor to carry out his plan. But few on the left are going to be upset if Garland is ultimately replaced for another nominee.

So while I understand why my progressive friends are bothered by Obama’s choice of Garland in the first place, I think the President has found his stride here applying his natural triangulating temperament to what looks to be truly impressive three-dimensional chess.

Alliance for Justice president and liberal court watcher Nan Aron often says, “the left sees the courts as a path to justice; the right sees the courts as a path to power.” With his Garland nomination, President Obama is — wisely — trying to achieve both.