If you are looking for a case study of contemporary American politics, forget the campaign trail for a while and take a close look at the fortunes of Merrick Garland.
Apparently Garland, Barack Obama’s nominee for the Supreme Court, has a resume that ‘makes you want to cry’. In his high-flying 40-year judicial career he has prosecuted drug-traffickers, overseen major domestic terrorist cases and won overwhelming bipartisan support when Bill Clinton nominated him for the DC Court of Appeals. It is a shame that he is unlikely to become a Supreme Court justice.
Americans, particularly the politically minded ones, think about Supreme Court justices roughly the way we think about cabinet ministers back home. They are referred to by surname, like well-known colleagues. People have their heroes and their cartoon villains. Juicy quotes from minority rulings are posted on social media like the best one-liners at PMQs. With passions on both sides running this high there was never any chance of sober objectivity prevailing when Antonin Scalia, the court’s textualist and arch-conservative anchor, passed away in February leaving a vacant seat on the court.
The partisanship soon began, and at the most basic level: should Obama even be trying to get a replacement confirmed this close to an election? Democrats claim that Obama has a constitutional obligation to make a nomination and that the Senate Republicans should also do their job and give Garland a formal hearing. It is a position Hillary Clinton has endorsed on the campaign trail.
At first glace that sounds reasonable enough. Scalia’s absence leaves eight justices on the bench, meaning that decisions can (and already have) result in a 4-4 deadlock. Without Garland’s confirmation the highest branch of the judicial system cannot function. Yet Senate Republicans have publicly refused to hear Garland and are treating the president’s nomination as irrelevant. They claim instead that only a new president (naturally they hope a Republican one) has the legitimacy to fill the seat.
But plenty on both sides concede that the months before an election – especially this election – are no time to settle the divisive question of a Supreme Court nominee (one Bill Clinton-era cabinet secretary recently called it ‘nonsense on stilts’ to suggest that now is a reasonable time to begin the confirmation process). Judicial experts point out that the Thurmond rule makes it a long-established convention not to risk polarising a confirmation by having it too close to election day.
Seen in this light Obama’s decision to go through the motions of a confirmation process he knows to be futile is less an act of constitutional duty and more a calculated political move to yet again cast Republicans as obstructionist.
The second fight is about the process. Senate Republican leader Mitch McConnell has made clear that the GOP will take no action on Garland’s nomination. The White House has countered in recent days by getting Garland to meet with any Senate Republican willing to show some bipartisan courtesy (there have not been many). Both sides accuse the other of turning the court into a political football. But it is also tactical. A lame-duck Senate could still confirm Garland if it wanted to even with a new president heading to the White House. The more groundwork that’s laid now the more realistic that becomes.
This scenario is unlikely but not impossible. Republicans can read the electoral colleague maths just like everyone else, and they know that Donald Trump (and quite possibly Ted Cruz) could cost them not only control of the White House but the Senate too. Suddenly the moderate Garland looks far more appealing than a more liberal candidate that a newly elected President Clinton would nominate.
With this – and doubtless some constitutional propriety – in mind several Senate Republicans had quietly suggested meeting with Garland, only to be shot down by their party leadership who view any compromise with the Democrats as anathema. So we have a few reasonable GOP voices are being cornered into a self-destructive political strategy by the more reactionary wings of their party: the parallels between the Republicans’ attitude to the Garland confirmation and their own primary are too tempting too ignore.
But the whole episode is also a reminder that partisanship is not a one-sided game. A Supreme Court nomination is one of the most powerful political choices a president makes. Whoever fills Scalia’s seat will have far more influence on American society than most Democratic politicians could ever dream of. And yet the administration has rushed headfirst into what it knew would be an ugly political fight with a candidate who is not particularly liberal and offers no ‘first’s for the court. Fellow DC appeals court judge Sri Srinivasan, for example, who would have been the first Asian American justice, was often touted as Obama’s real favourite but did not make it off the shortlist.
For Democrats, choosing a centrist but highly qualified judicial nominee over a risky but perhaps more exciting candidate also has echoes of their own party nomination. Fortunately the latter looks set to have a much happier outcome than the former.
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Charlie Samuda is a former adviser to the Labour party and is studying at the Harvard Kennedy School. He tweets @CharlieSamuda
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