Merrick Garland has a stellar judicial record. None of the 330 decisions he authored have even been heard by the Supreme Court on writ of certiorari. Few of his fellow jurists on the D.C. Circuit have dissented in cases where he wrote the majority opinion. He has fed more clerks to the Supreme Court than any other recent appeals court judge. Add to this a squeaky clean record and he seems the ideal nominee for a quick and painless confirmation to the Supreme Court. And yet this quick and easy confirmation is far from reality (in fact this is the longest amount of time the Senate has ever gone without holding confirmation hearings for a Supreme Court nominee).
Let’s assume President Obama and Democratic Presidential Nominee Hillary Clinton are both strategically and politically savvy. Let’s further assume that Judge Garland was not the ideal choice of Justice for either Obama or Clinton. Why does this nomination make sense and why will Clinton likely renominate Garland if given the chance to do so?
The Initial Nomination
President Obama had various options for a nominee. Many including myself thought that the President would give a serious look to Sri Srinivasan from the D.C. Circuit. Srinivasan is young, accomplished, and has prior government service under a Democratic regime. Obama could have solidified his legacy on the Supreme Court for years to come with Srinivasan on the Court. President Obama opted to nominate Judge Garland instead.
What initially appeared as a surprise now seems well-calculated. President Obama likely had foresight into what would happen with Senate hearings for the next Justice. Perhaps he didn’t know that the Senate would stymie his nominee to the extent that it has, but he presumably knew this was not going to be a quick or easy battle. Under such circumstances Garland was and is the ideal nominee.
With all the news that has surrounded Garland since his nomination on March 16, 2016, there have been no largescale, scandalous news accounts to blemish Garland’s record. This is during the same period that Presidential nominees Trump and Clinton have been dragged through the mud time and again.
Even with all the vetting of Supreme Court nominees, past Supreme Court hopefuls have come up short or even removed themselves from contention due to their past decisions (take for example nominees Douglas Ginsburg and Harriet Miers). To be sure, President Obama’s staff did a thorough job looking through Garland’s record to prevent such past exploits from ruining the current nomination. With a strong nominee with a clear record, President Obama not only sidestepped any focus on Judge Garland’s past, but actually turned the tables on the GOP. The GOP looks increasingly bad as days go by without even a hearing scheduled. This delay is unprecedented and is bringing partisanship into the fray of the nomination process even more than we have seen in the past. Suffice it to say this does not make the GOP look good in an election year where it cannot hope to maintain control of the Senate while simultaneously making poor political plays.
Garland may be more moderate in his views as expressed by his past decisions than President Obama’s ideal Supreme Court nominee. In criminal cases Garland is even seen as ruling predominately conservatively. Garland surely would push the Court to the left, especially since he would fill Justice Scalia’s seat. If President Obama wanted a dedicated liberal on the Court, however, he might have set his sights on someone with a stronger and more apparent leftward ideological valence. Instead he went with Garland, the strategic pick that makes perfect sense given the current political climate.
Clinton Renominating Garland
Some things are out of Hillary Clinton’s hands. She can affect her chances at winning the Presidential election with what she does between now and November but ultimately the voters will make the decision. Information about her private e-mail security as Secretary of State is already out in the public and potentially more will leak. On the other hand, the GOP controlled Senate could read the writing on the wall (assuming Clinton maintains a respectable lead in the race) before the election and choose to hold confirmation hearings for Garland before the next President is elected. If Clinton wins the election though she can choose to stick with Garland or to nominate someone else to the vacant Supreme Court seat.
What if Clinton, like President Obama would prefer a Supreme Court nominee ideologically to the left of Garland? If Clinton becomes President does it make any sense for her to still re-nominate Garland? Yes. Why? Because she is smart, it is a wily political maneuver, and it will add legitimacy to her (potential) future nominations to the Court.
There is widespread current support for the notion that Clinton should and will stick with Garland. Hillary Clinton would enter the Presidency with at very least a small black cloud over her from this e-mail scandal and would be expected to attempt to fill the Supreme Court vacancy post-haste. Rocking the boat at that point seems like a risky decision at best. Instead, the safer choice would be for her to store her political capital for a possible future pick to the Court.
With the likelihood of more vacancies on the horizon, Clinton could afford to renominate Garland, even if it is not her first choice, for the potential of a more liberal pick down the line. This possibility is not without risks though. The oldest Justice on the Court is Ruth Bader Ginsburg. If Ginsburg, a liberal Justice, is the next to leave the Court, then a liberal nominee will not make much of an impact compared the current vacancy and nomination.
There are possibilities of conservative-leaning Justice leaving the Court in the next several years as well. Speculation was raised this past year of the possibility that Justice Thomas would step down from the Court. Although this rumor was later explained away as false, the rumor may still have some traction depending on where it was started.
At age 80, Anthony Kennedy is on the older end of the spectrum as well and votes conservatively on the balance. As a Justice on the Court for almost 30 years, Kennedy might also mull the possibility of retirement. His recent moves to maintain the position of “Swing Justice” by upholding University of Texas’ affirmative action policy in Fisher tend, however, to point in the direction of his continued interest in maintaining a defined role on the Court.
There are many possibilities still at play for the next Justice. At this point, the renomination of Judge Garland to the Supreme Court appears to be the most sensible choice for Presidential hopeful Hillary Clinton if she is given such an opportunity.
On Twitter: @AdamSFeldman
8 Comments Add yours
These are pretty convincing arguments. If by chance Clinton is elected and does not immediately indicate she will re-nominate him in January, and I was Judge Garland, I would remove myself from consideration before the lame duck Congress could act to confirm. The Senate said it should be up to the next president to choose. They should have to live with the results of that gamble. But I’m not Judge Garland, and he may see it differently.
Seems to me that he smart move for Clinton depends on the makeup of the next Senate. If Dems take firm control, I’d like to see her have the Garland nomination withdrawn, and go for someone like Pam Karlan or Godwin Liu.
McConnell could piss and moan all he wants; the rejoinder (from Obama, Clinton, and even Garland himself) would be that HRC is giving MM just what he asked for, letting the next President decide. Elections have consequences, and it’d be time to play hardball with these assholes.
Should Clinton win but be faced with a GOP controlled Senate, Feldman’s analysis makes more sense. Indeed, the lame duck Senate would likely move to confirm Garland, knowing that HRC would not nominate anyone they liked better. HRC would let them do so, taking a confirmation battle with a hostile Senate off the table and avoiding an unnecessary battle in the first months of her presidency.
On Sat, Aug 13, 2016 at 3:14 PM, Empirical SCOTUS wrote:
> Adam Feldman posted: ” Merrick Garland has a stellar judicial record. > None of the 330 decisions he authored have even been heard by the Supreme > Court on writ of certiorari. Few of his fellow jurists on the D.C. Circuit > have dissented in cases where he wrote the majo” >
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