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Wednesday, March 16, 2016

Merrick Garland

Should we feel good or bad for Merrick Garland, today named by President Obama as the Associate Justice of the Supreme Court to replace the deceased Antonin Scalia. In the real world, we would say "mazel tov!" Garland is a highly-qualified judge, perhaps the highest qualified of anyone, as he has been on the nation's second highest court for 19 years and Chief for three of those years. In the real world, Republicans would nit-pick but then ultimately vote for him, as they did with Sonia Sotomayor and Elena Kagan.

But this is not the real world, it's Bizarro World. As Garland stood with the President and Vice-President in the Rose Garden and got choked up by the honor, he had to know that this may all come to nothing, because the Republican senators are a big bunch of babies.

This has been coming since Scalia's body was still warm, when Mitch McConnell, Senate Majority Leader, said that because it was the last year of Obama's term, the Senate would not even consider a nominee. This is not mentioned anywhere in the Constitution. McConnell says let the people decide. Well, they did decide, back in 2012, and until Obama is out of the White House, January 20th, 2016 at noon, he is the president.

The obstruction here is so appalling it makes you want to pull the hair out of your head. That almost all the Republicans are in lockstep on this is maddening, because you know if it was their president they'd say the exact opposite. There have been many Justices nominated in an election year, and they've almost all been confirmed. Some are bringing up the ghost of Robert Bork. Well, Bork had his say, and was grilled for a week in hearings. It appears that most Republicans won't even meet with Garland, as if he had plague.

The talk of this nomination is Obama's decision and how it plays politically. He could have gone two ways--pick a nominee that would have excited the base or an ethnic minority and let that play all summer into the campaign. Ideally, it would have been a black woman or a Mexican-American (the latter would have been really fun to watch). Obama's probable second choice, Sri Srinivisan, is a South-Asian, which really doesn't have a large say in electoral politics nationwide.

But Obama took the second choice--the high road. He picked the guy most qualified, with no "firsts" about him. He is a white man (and Jewish, but there are currently three Jews on the Court). He is also 63, the oldest nominee since Lewis Powell in 1972. What Obama seems to be doing is saying, "Here is a guy who is eminently qualified, that many of you have said nice things about, and he will not be on the court for forty years, more like twenty. I dare you to take a chance that Hillary won't select someone younger and more liberal."

Some on the left are bemoaning that Obama took the second choice, complaining that's trying to placate the Republicans and is again playing chess. I'm not so sure--I think this nomination may be even more difficult to get around. Two of his other rumored choices were Jane Kelly, a woman from Iowa that would have nettled Senate Judiciary Chairman Charles Grassley, also from that state, and Kejani Jackson Brown, a black female judge, but a district court judge, who would have been jumping up an extra level and would have been susceptible to cries that she was unqualified. Obama seems to have just said, fuck it, and went with the most qualified guy. And, since Obama is so big on empathy, he might have felt sorry for the guy, who was a bridesmaid in the process of Obama's other two nominations.

So we watch Garland on the occasion of what should be the greatest day of his professional life, and wonder if it will go up in a puff of smoke. Consider Homer Thornberry. He is the last person whose nomination died on the vine (others have been rejected or removed their names from consideration--Harriet Miers and Douglas Ginsburg come to mind). When Earl Warren retired during Lyndon Johnson's term, Johnson attempted to move Abe Fortas to Chief Justice, and then replace Fortas with Thornberry, a congressman from Texas and a crony of Johnson's. But Fortas' nomination had all sorts of problems, such as accusations of impropriety, and by the time it was settled Fortas withdrew and Nixon was president. He named Warren Burger, and Thornberry was relegated to a very minor footnote in Supreme Court history. Will that be Merrick Garland's fate?

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