Thoughts on Merrick Garland

First of all, I must confess error: I really, really thought it was going to be Sri Srinivasan. It wasn't. Whoops. (I did however predict that Obama would announce his choice today, right after Trump has seized control of the Republican primary, thus helping with the "make Republicans look like damned fools" strategy.)

As far as the nomination itself, I think Garland is probably the unique solution to the question of "who would this President and this Senate pick as a nominee?" Now, of course, we know that this Senate has no interest in solving that question, and I actually think that's why it's important that Obama chose Garland. Senate Republicans oppose this nomination on spurious grounds of principle, and I think Obama has a solemn responsibility to contest that principle with all his might, lest it become settled precedent. That doesn't just mean nominating someone. It means nominating the very person he would choose if his goal was to reach a reasonable compromise with this Senate. After all, if this President has the right to participate in this process, surely so does this Senate. Nominating some liberal firebrand would feel more like Obama's responding in kind to the Republicans, saying, hey, pretty soon you guys won't be in office either, I'd rather wait until then.

Of course, that depends on Garland's status as someone acceptable to both liberals and conservatives. I've gone back and forth a bit on whether I think he should be acceptable from our side of things; basically what gives me pause is the possibility that he would be more conservative than Scalia on certain criminal justice issues. That's the area where Garland is said to be at his most conservative, and many of Scalia's idiosyncratically liberal stances were in that area. It would rub me a little the wrong way for the Court to get worse on any major set of issues by dint of replacing Antonin Scalia. But right now I'm feeling pro-Garland. Partly that's just because Obama nominated him, and I trust Obama's judgment. Partly it's because, while Scalia did have a few liberal views about criminal procedure, mostly he was awful on criminal justice stuff.

But partly it's just because Obama has successfully appealed to the small-d democrat in me. It's not fun when the other side wins, but sometimes they do, and when they do, it's their right to participate in governance. Garland, as the most reasonable compromise between President and Senate, is the correct answer to the question "who should replace Scalia?" in terms of how our constitutional system is supposed to function. And while I applaud Obama for his willingness to reject lopsided compromises that would shift public policy in a conservative direction when it comes to ordinary matters of legislation, I do think it's kind of different here. There's a real argument that it would be a dereliction of duty to just leave the seat unfilled for a year because Obama hoped that his side would be in a more commanding position after the election. And, of course, Garland would shift the Court massively to the left compared with Scalia, even if he might not do so on every single issue. We also might get another opportunity to shift the Court leftward if Justice Kennedy retires sometime soon; I've heard rumors to the effect that he's maybe not doing so well. Garland would probably be a really good Supreme Court Justice, even if I might not agree with him about everything, and frankly, I'm not entitled to a nominee I agree with about everything right now. So, count me in.

That being said, by far the most important thing about this whole situation is that he's not going to end up on the Court, not as a result of this nomination in any event. (Watching him tear up at his press conference earlier I couldn't help but feel kind of sorry about that, even though I'll probably like the Justice who ends up in the seat in his stead better.) I bet the Republicans are really regretting that they decided to take this pseudoprincipled stand right now, because as a matter of pure strategy, the obvious play is to fold like a cheap suit and confirm Merrick Garland. Their party is going to nominate one Donald J. Trump. He's more than likely going to lose to one Hillary Rodham Clinton. It's not even clear that they'll be rooting against that result. And when he loses to Hillary, she'll likely wind up with a Democratic Senate. At the very least it'll be a less Republican Senate than we've got now. If this vacancy is still open then, they'll be longing for the days of Merrick Garland. But having staked out this supposed constitutional principle, they can't follow the strategic logic without making it painfully obvious that they were lying earlier.

And their idiocy isn't just a matter of strategy. They're saying that they want "the American people" to have a say in the process, but in cutting the people who elected Barack Obama out of the process, they're also cutting the people who elected them out of the process. Honestly I feel like they're betraying their constituents more than anyone else.

I also think it's very likely that if, as I think is likely, we get President Hillary and a Democratic Senate next year, the Senate Democrats will both be entirely within their rights to get rid of the filibuster for Supreme Court nominees (thus ensuring that no Republicans have an ounce of influence over Hillary's nomination), and will be kind of likely to do so. Those same Senate Republicans will have spent a year instituting a blockade on spurious constitutional grounds purporting to defend the right of the people; they'll have forfeited any right to block the President and Senate that the people chose from making their preferred choice.

Oh, and one final point: people are talking about what will happen during the lame duck session. Suppose, for instance, that the Democrats win big, taking the Senate and holding the Presidency. Well at that point, Republicans should leap to confirm Garland, right? Yes, but Obama shouldn't let them. He's perfectly within his rights to withdraw the nomination, and if the vacancy is still open on November 9th I think it would be entirely proper of him to do so. Indeed, even if he left the Republicans with a little sliver of time to vote Garland through before withdrawing the nomination, he would be perfectly within his rights to decline to sign the commission, thus defeating the appointment. His rationale would be as follows: "look, I wanted to work with you to fill this seat, but you insisted on waiting until after the election, and you lost. You've forfeited your right to be a part of this process; I'm done with you." Particularly if Hillary's position in the polls looks commanding, he might even want to announce that a little in advance of the election. One way or another, it would be unacceptable to allow this Garland nomination to serve as a "heads we win, tails we don't lose very much" device for the Republicans.

I wish I could say that the next little while will be very interesting, but unfortunately it looks like the plan is for just nothing to happen for many months, and then eventually we'll see if it had an effect on the election. Ah well.