With President Obama's Supreme Court Justice pick of Merrick Garland, we can assume that given his deliberative tendencies, he took many factors into account in reaching his decision. Today’s toxic political climate forced him to become far more tactical than he’d like to have been on this issue. But in life, you have to deal with the cards you are dealt, and in this instance, president Obama played his hand like a world class poker player.
It seems President Obama reached a sobering conclusion that Mitch McConnell would not allow a hearing or a vote on any person standing in the Rose Garden with an endorsement coming from Obama. Armed with this reality, Obama concluded that he must:
1) Fulfill his obligation as President of the United States and nominate someone he deemed qualified for the position
2) Submit a nominee that has the respect of Senators on both sides of the aisle.
3) Choose a person that allows the democrats to highlight Republican negligence, hypocrisy, and refusal to carry out their constitutional duties.
4) Save the considerations of more liberal and younger judges for the next Democratic president for 2017.
Merrick Garland is 63 years old and serves as Chief Judge from the US Court of Appeals for the DC Circuit. In the Washington Post, Stephen Vladeck, professor at American University Washington College of Law said this: “Chief Judge Garland’s jurisprudence is the epitome of centrist, case-by-case adjudication — not because he lacks deep methodological commitments, but because he’s never been prone to go out of his way to wax philosophical about those commitments,” he said. “He has a remarkable dearth of separate opinions, and even his majority opinions tend to be fairly efficient, technical resolutions of the legal questions before him.”
As with all perceived centrists, they upset both sides of the aisle. Reason magazine's Damon Root reported that liberals would probably be upset to hear about Garland’s past decisions related to Citizens United. Tom Goldstein from the SCOTUS blog suggests that Garland’s tendencies in upholding environmental laws may upset some conservatives. Mr. Goldstein also adroitly pointed out that the DC circuit often hears regulatory cases and so a clear view of Mr. Garland’s view on hot button issues of the day -- like abortion and affirmative action are not clearly known.
By picking a well-qualified centrist who has little to no chance of getting a hearing, Obama is willing to take the short term hit of liberal questioning and attacks on his commitment to progressivism. Obama understands that Merrick Garland’s admirable career will not be tainted by the predetermined Republican rebuke, and he has given the Democratic nominee for president more ammunition to incorporate into their campaign - the never ending narrative of a Republican party that routinely engages in automated obstruction.
Lastly, by nominating Merrick Garland, Obama made a conscious decision to bypass nominees of color. Paul Watford and Sri Srinivasan are often mentioned as potential candidates, as are Jodi Jacobson from RH Reality Check, noted Kamala Harris, attorney general of California, Loretta Lynch, U.S. Attorney General, Melissa Murray, a professor at UC Berkeley, and Jacqueline Nguyen, a judge on the Ninth Circuit as possible candidates.
Under normal political circumstances, Obama’s track record of appointing 42% of judgeships to women and 36% to people of color, the highest ever by a president, suggests his nominee for the Supreme Court would have been a minority. But these are not normal times. And because of it, Obama decided the best political play would be to put the Republicans on the defensive and highlight their rejection of white competence. Obama knows the Democratic base will be fired up if Donald Trump becomes the Republican nominee for president. The pick of Mr. Garland is about appealing to white independent and moderate voters. Obama hopes the upcoming general election narrative focuses on a Democratic vision for the country, but also to make the Republican Party synonymous with dysfunction and incompetence.
Obama can rightly assume if a Democrat wins the White House, there is a distinct possibility that there may be two or three vacancies on the Supreme Court in the next four years due to ages of current Supreme Court Justices. The opportunity for greater diversity will present itself once again and this time, under far more favorable circumstances for actual confirmation.
The decision by the Republican Party to ignore their constitutional duty of voting on nominees to the Supreme Court by a sitting President of the United States will not sit well in American history. And the Republican Party has proven time and time again that partisanship is more important than country. Merrick Garland may be the latest victim of Republican intransigence, but President Obama's political calculation will be rewarded in the upcoming election, and in the history books.