President Obama’s choice of Merrick Garland to succeed justice Scalia on the Supreme Court was not the nominee progressives were dreaming of a month ago, when Scalia’s unexpected death opened up a once-in-a-generation opportunity to transform the Supreme Court.
But Garland was almost certainly not who Senate Republicans were expecting when they drew the hard line soon after Scalia’s death that no Obama nominee would be considered. Just last week, Sen. Orrin Hatch (R-UT) — a member of the Judiciary Committee — said he didn’t “believe” Obama’s assurances to him that he would nominate a “moderate.”
“[Obama] could easily name Merrick Garland, who is a fine man,” Hatch told Newsmax. “He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”
Garland is a 63-year-old straight, white male. He is a moderate, by most standards, with a reputation for playing by the book. His resume has the sterling pedigree one comes to expect from a Supreme Court justice: Ivy League education, clerkship for Justice William Brennan, prosecutor for the Department of Justice and the chief judge on the nation’s most influential appeals court. Even Fox News admitted he is the most conservative Supreme Court nominee put forward by a Democratic president in the modern era.
But his selection — by being so divorced from controversy or even imagination — has caught the President’s chief adversaries in the ongoing nomination off guard. A handful of Republicans senators, including apparently Judiciary Commitee Chair Chuck Grassley (R-IA), have said they would meet with Garland — straying from the line GOP leaders previously drew that such a meeting would have no purpose. A few have even floated considering his nomination in a lame duck session, implicitly acknowledging that he would be a much better deal for them than whomever Hillary Clinton nominated if she wins in November. Rather than provoke Republicans to a reactionary position with a bold choice, Obama offered them someone so boring, they’re stuck tying themselves in knots.
For progressive groups hoping to use Republican obstruction against Obama’s nominee to rally voters to the ballot, the announcement of Garland’s nomination drew a measured response, and even a little disappointment from some.
The National Organization for Women said it was “unfortunate” Obama chose someone “whose record on issues pertaining to women’s rights is more or less a blank slate” and that it was “equally unfortunate” Obama didn’t put forward a nominee who could have become the court’s first black woman.
“Many may be disappointed that President Obama did not use this opportunity to nominate a judge with a strong track record on progressive issues, or a judge who can add to diversity on a court that still fails to represent the richness we see in our communities,” the National Immigration Law Center said.
The liberal grassroots group CREDO noted that “Garland’s background does not suggest he will be a progressive champion.”
Most left-aligned groups — like NARAL, MoveOn and the Human Rights Campaign — pushed the line that the Senate has a duty to consider Garland and that they looked forward to what a hearing on his qualifications reveals about his aptitude to be a Supreme Court justice.
Even the outside conservative legal groups tasked to keep the pressure on the Senate GOP didn’t quite know what to make of Obama’s pick of Garland.
On a press call with reporters, leaders from the Ethics and Public Policy Center, Judicial Crisis Network and America Rising Squared insisted that Garland was a liberal who would transform the court, but struggled to come up with a smoking gun in his record to prove that he was a progressive radical.
When a reporter asked for more evidence — besides a 2007 vote to rehear a case on D.C.’s handgun ban and a 2000 decision favoring the retention of information from background checks — to support their claim that he wouldn’t defend the Second Amendment, Carrie Severino of the Judicial Crisis Network offered nothing else; she argued that those two moves, which came over the course of nearly two decades on the bench, were “as a robust record you would ever find.”
Severino’s own past comments about Garland are even more striking. Back in 2010 during the nomination process that produced Justice Elena Kagan, Severino called Garland “the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.”
“Of those the president could nominate, we could do a lot worse than Merrick Garland,” she said then.
The conservative judicial activists joining her on Wednesday’s press call also swore that Senate Republicans were not in fact wobbling on their absolutism.
But at the very least, by choosing Garland, Obama injected some new lines for the GOP to quibble over. There is currently dissension among the ranks over meeting with Garland, with at least a half a dozen Republicans saying they would. There is also intra-party disagreement over whether Republicans should consider Garland’s nomination in a lame duck session if a Democrat wins the White House.
Republican Sen. Jeff Flake (AZ), who sits on the Judiciary Committee, laid out the logic.
“If we come to a point where we’ve lost the election, and we can get a centrist like Garland in there as opposed to someone like Hillary Clinton might appoint, then I’d go for it,” Flake said.
Sen. Lindsey Graham (R-SC) — who previously admitted the GOP’s obstructionist position was unprecedented and predicted that a future President Hillary Clinton would select someone much more liberal– also rejected the idea of a lame duck confirmation.
“We can’t have it both ways,” he said. “We cannot say ‘let the people speak,’ and then say ‘no, you can’t.’ If you are going to let the people speak, let ’em speak and honor their choice.”