The Right Choice for the Wrong Reason

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Democracy's Constitution / Repairing the System

In an earlier post I discussed Senate Majority Leader Mitch McConnell’s decision to refuse to even to hold hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. That post generated a good deal of interest. So I would like to look now at the Garland nomination from the Democratic perspective.

Obama’s motives in nominating Garland do not appear much different from McConnell’s in opposing him; he too was looking at the nomination’s effect on the November presidential election. Obama wanted to make the Republicans an offer they could not accept. He predicted that the right-wing GOP would not accept any nominee he put up and that they would pay a political price in November for that refusal. Subsequent events seem to be proving him right; the Republicans have so far refused to schedule a hearing on Garland and the polls show that the voters think less of them for that fact.

But from a larger political perspective I think Obama miscalculated. Even though the Republican obstructionism is unpopular, it is unlikely to have much effect on the election results. More importantly, since it is becoming increasingly clear that Hillary Clinton will easily defeat either Trump or Cruz in November, the chances of appointing a liberal would have improved if he had stood pat and allowed Hillary to nominate a candidate in January. As it stands now, the Republican Senate can deprive Clinton of that opportunity by awaiting the results in November, and if Clinton wins, quickly confirming the moderate Garland.

But even if Obama’s nomination of Garland turns out not to be clever as a political move, I think from a constitutional perspective he made the right choice. Garland, as this NYT article points out, has all the qualities we value in a judge.

The public now sees the Court as a politicized institution and that has to stop. If the Court is to fulfill its constitutional role, it needs to be staffed by judges who take office without a scripted ideology. Younger readers may not be aware that the New York Times did not always break down a close Supreme Court decision according to the number of justices in the majority who had been appointed by a president of one party or the other. That we now do such a political tally is a bad sign for health of the Court. When justices are seen as mimicking the policies of the party that nominated them, the justification for constitutional judicial review disappears.

Bush v. Gore is the most prominent example. No serious constitutional expert could claim with a straight face that the Republican-appointed majority in that cause would have ruled the same way if the names of the plaintiff and the defendant had been reversed. But Al Gore was not the only loser; the Supreme Court as an institution also took a big hit. The fact that it was the self- proclaimed apostles of “judicial restraint” who did the damage only further undermines the public’s confidence.

Obama‘s nomination of Garland should be seen as a recognition that a Supreme Court justice is a judge, not a politician in robes. And should Senator McConnell after the election change his mind and support Garland, we should applaud him for this display of statesmanship. I suspect that if Garland has not been confirmed before she takes office, President Clinton will find it politically very difficult not to submit his name again. If she does, we should applaud her for setting the right example for future appointments by future presidents.

I recognize that many people I respect will vehemently object to my “moderate” plan. Let me anticipate two such objections. The first would argue that the appointment of “moderate” justices will lead to, at best a do-nothing court, and perhaps a reactionary one. I think this argument ignores the historical fact that often justices who were deemed “moderates” when appointed have written the opinions in the cases liberals most celebrate: Justice Warren’s opinion in Brown v. Bd. Of Education, Justice Blackmun’s opinion in Roe v. Wade, Justice Powell’s concurrence in Bakke, and Justice Kennedy’s opinion in the same sex marriage case.

All these justices were appointed by Republican presidents, as were liberal heroes Brennan, Stevens, and Souter. The fact is that “moderates” often have a more open mind than ideologues which permits them to “evolve” to positions they did not previously hold as they are exposed to more information. Also their support makes controversial decisions easier for other justices to support. When Justice Warren, a former Republican District Attorney, supported broader constitutional protections for criminal defendants, he reassured other justices that the reforms would not destroy our system of justice.

A second objection would argue that, even if good in theory, my plan that presidents appoint justices who should be minimally acceptable to the other party would be suicidal in practice because Republican presidents would continue to appoint right-wing ideologues. It is true in recent years Republican presidents haven done just that with the appointments of Justices Thomas, Scalia, and Alito. But the Democrats only have themselves to blame for those justices because a major political party that takes its constitutional responsibilities seriously should have no trouble blocking the confirmation of an openly ideological nominee.

The dream of rigging the Court in our favor is a seductive one. But we must recognize that our political enemies have an altogether different dream in mind. Best that we remember that for the Court to do its job it is necessary that it seen as impartial. No one wants to appear before a judge who has decided the case before he or she takes the bench.

What do you think?

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  1. Is there a reason Obama could not pull back the nomination in the event Bern/Hillary wins in November?


  2. He certainly could,pull back the nomination but I think he would be justly accused of doing just what he is now accusing the Republicans of doing– playing politics with a constitutional responsibility..


  3. Matt says

    For the most part I agree with you, but the suggestion that Clinton will be the nominee bothers me. Not only is Sanders doing better than Obama was at the same time but Clinton is also facing more and more accusations of corruption and lawsuits from everywhere. Wasserman is being overthrown from the DNC all while Sanders gains more and more support (even as far as his likely opponent’s supporting him)


  4. I hope you are right about Sanders, and, if he wins the election, I hope he will re-submit Garland’s nomination.


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