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Obama’s Tricky Supreme Court Politics

The nomination of Merrick Garland puts the GOP in a bind. But it also represents a missed opportunity.

Mark Wilson/Getty Images

President Obama’s nomination of Merrick Garland to the Supreme Court reflects a strategy that Obama has used with some measure of success in his second term—namely, playing it cool and giving congressional Republicans enough rope to damage themselves politically. In the context of the upcoming elections, however, it’s not clear that Garland was a politically optimal choice.

First of all, we should be clear that Merrick Garland will not be confirmed by the Senate before the election in November. Senate Republicans have been unwavering on this point, and any doubt about this was dispelled by the statement made by Senate Majority Leader Mitch McConnell after the appointment was announced. “The Senate,” McConnell declared, “will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.” 

To tweak Democrats, McConnell justified his decision by citing a so-called “Biden rule,” which is based on an observation by Biden that a hypothetical Supreme Court nomination made in the summer of a president’s last year in office is unlikely to be successful.

So the “Biden rule” is not in fact 1) a rule or 2) pertinent to Obama’s March nomination of Garland. But that’s not the point. McConnell is clearly going for an all-or-nothing gamble on a Republican winning the election, rather than taking what’s probably the best nominee he can get from a Democratic president.

As such, the things about Garland that would ordinarily concern liberals—most notably, his relatively advanced age and his shaky record on civil liberties—are less important than they ordinarily would be. McConnell’s assertion that “it seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed but in order to politicize it for purposes of the election” is almost comically hypocritical, but it’s not exactly wrong either. With confirmation out of the question, Obama is trying to hurt the GOP, thereby maximizing the chances that the next Supreme Court nomination will be made by a Democratic president with a Democratic Senate majority. That the other finalist for the nomination, Sri Srinivasan—Garland’s fellow judge on the U.S. Court of Appeals for the District of Columbia Circuit—had a similarly moderate profile makes Obama’s intentions clear.

It should also be noted that, were Garland to be confirmed, say, in the lame duck period after a Democratic victory in November, there’s little risk that he would be the liberal equivalent of David Souter, who famously aligned with the Court’s liberal wing after being nominated by George H. W. Bush. University of Michigan Law professor Sam Bagenstos tweeted earlier today that Garland is “[Stephen] Breyer without the super-long questions at oral argument.” That is, a liberal judge who is reliably progressive on issues like national power, civil rights, and reproductive freedom, but votes with conservative justices in cases involving the rights of criminal defendants. That’s certainly not a pick that would make liberals excited, but Garland is hardly a conservative. Breyer, after all, voted with Ruth Bader Ginsburg 93 percent of the time in the most recently completed term. 

To this extent, Obama’s political logic makes sense. The University of Colorado law professor Paul Campos writes admiringly of Obama’s choice to nominate a moderate who has been extensively praised by Republican senators like Orrin Hatch in the past. “If they carry through with their we-just-made-it-up-on-the-spot principle,” Campos argues, “and refuse to even give an indisputably moderate nominee such as Garland a hearing, they will look like petty obstructionists to swing voters in their home states.” The fact that Republicans won’t have any decent excuse to oppose Garland, other than their belief that Obama shouldn’t be permitted to fill the vacancy, will, in this interpretation, compound the political damage.

This may well be right. But there are two possible objections to this line of reasoning.

One potential problem is that appointing a moderate justice might make it harder for a future Democratic president to nominate a strong liberal by moving the political center of gravity to the center. However, although Garland is more moderate than Elena Kagan and Sonia Sotomayor, there isn’t much evidence that nominating a moderate begets more moderates. (Ronald Reagan followed Sandra Day O’Connor with Antonin Scalia; George H. W. Bush followed David Souter with Clarence Thomas.) If anything, Republican opposition to a moderate will give Hillary Clinton even less incentive to pick someone like Garland.

A second, more serious objection is that it’s very difficult to sell the public on abstract procedural arguments. That the Senate is obstructing Obama’s nominees likely won’t galvanize any specific constituency. Had Obama chosen a similarly well-qualified minority candidate, such as Judge Paul Watford of the Ninth Circuit Court of Appeals, it would be much easier to mobilize the Democratic base against McConnell’s obstructionist tactics. The politics of refusing to confirm an African-American or Hispanic judge with impeccable credentials would have been worse for Republicans, particularly given the race-baiting of Donald Trump, the current frontrunner for the Republican nomination.

The strongest argument in favor of nominating Watford is the fact that swing voters comprise an increasingly small percentage of the electorate. With every cycle, base mobilization becomes more important, and the ability of the Garland pick to mobilize Democratic supporters is probably limited. Nominating a more progressive (but still mainstream) minority candidate might have generated a little more base enthusiasm.

All this said, the Supreme Court has historically been a very marginal issue in presidential and Senate elections. It’s likely to be more salient this year, with a pivotal vacancy looming and a major abortion case scheduled to come down in the heat of the presidential campaign. But even if one believes that Watford would have been a better political choice, it’s a minor difference.

Ultimately, the future of the Supreme Court will be determined by the elections in November. The Republican primary electorate’s apparent preference for Donald Trump does more to increase the chances of Democrats controlling the Senate and the White House than any choice Obama could have made on Wednesday.