President Barack Obama’s decision to nominate Merrick Garland, a 63-year-old white moderate and perennial short-lister, to the Supreme Court, has political junkies and lawyers scratching their heads.
Speculation had swirled for weeks that Obama would select a young, qualified, liberal ethnic minority to fill Antonin Scalia’s vacancy—a decision that would’ve turned the GOP’s promise to obstruct any nominee into a racially fraught proposition, and possibly elicit the same kind of ugly, racially tinged attacks that Justice Sonia Sotomayor faced seven years ago, but this time in an election year.
A conventional wisdom is already forming that Obama chose Garland to wrongfoot Republican senators, who were expecting a more liberal nominee.
But that doesn’t really bear much scrutiny.
There was a profound and straightforward political logic for Obama to nominate a judge like Leondra Kruger, who would’ve become the first black female justice in U.S. history, or Jane Kelly, who’s a female former public defender and a resident of Iowa—home of embattled senator and Senate Judiciary Committee Chairman Chuck Grassley.
Nominating anyone along those lines would have fulfilled a promise to make the court more representative of the nation and drawn attention to the Republican Party’s desperate, power-mad commitment to keeping the Court the same, and their blindness to the merits of having a more diverse court—even if it means handing the nomination power to Donald Trump.
A nominee like Garland, by contrast, cedes all of these advantages to the Republican Party. It allows them to say, in effect, “See, this has nothing to do with race, or gender, or even ideology. We just want the next president to pick Scalia’s successor.”
Why do that? Perhaps the White House reads the politics differently. It may also be that Obama’s taking a longer view: that he’s sensitive to the personal interests of judges like Kruger or Kelly, who would have faced severe exposure and professional risk, simply for the honor of being a political pawn. As simple as the case is for turning a young, minority judge into cannon fodder, if you’re that judge, you might be apprehensive about playing along and Obama might be apprehensive about damaging the career of such a promising jurist. Which is to say that the “right” move here may have been too cynical to get buy-in from a risk-averse professional with Supreme Court ambitions, or from a former constitutional law professor who’s sensitive to those concerns.
It could also be the case that Obama wants to fill the seat himself, and believes this Senate is much likelier to confirm Garland (perhaps amid a Trump-induced panic) than an enigma or a reliable liberal.
There are a number of ways to approach this question, in other words, without assuming Obama thinks Senate Republicans will be swayed by Garland’s moderation or out of appreciation for Obama’s reasonableness. Maybe a few years ago, but not now.
Either this was a political opportunity missed, or an opportunity that never existed, but disappointed liberals can take solace in two things: the possibility that Republicans will block Garland and live to regret it; and the implication that Obama believes the general election conditions are so promising for Democrats that he forsook an incredible imaginable chance to mobilize the party’s base.