With the nomination of Merrick Garland for the vacant seat on the Supreme Court, President Obama is in full-on troll mode now.
The Republicans, via Senate Majority Leader Mitch McConnell, said they will not consider anyone. Not no way, not no how. So Obama nominates Garland. He is widely regarded as a centrist, and definitely not an activist. SCOTUSblog called him “essentially the model, neutral judge.” He consistently rules against prisoner rights, and ruled that Gitmo detainees aren’t entitled to a trial in civilian courts. In general, he supports a broad view of police powers.
There are really no major LGBT or other social issue cases that he’s ruled on, and in the few (small) ones he has presided over he’s sided with the government and against LGBT people. He has effectively no record on abortion.
All of which is to say, Merrick Garland is no leftist activist. His judicial temperament is universally described as collegial, quiet, and brilliant. He was a completely uncontroversial nomination to the D.C. Circuit Court of Appeals. All of the Republicans' opposition to the nomination was because they didn’t want to fill the 12th slot on the District Court in general, and not because they objected to Garland’s qualifications or judicial temperament.
Indeed, when President Obama was considering who should replace Justice John Paul Stevens on the Supreme Court in 2010, conservative Republican Sen. Orrin Hatch of Utah promised he would help Garland’s nomination along, and that the nomination would sail through the Senate with bipartisan support.
Given that this is a lifetime appointment and that Garland is 63, he would have a much shorter term on the court than most if the Senate approved him. Garland’s age, in any other situation, would make him a much more tempting nomination to Republicans than most others, since the opportunity to replace him with another Scalia would probably come much sooner than it would for a 50-year-old nominee.
Thus Garland is someone most Democrats would be having a fit about if President Obama nominated him under other circumstances. What President Obama is saying to Republicans is, "OK, here's the best possible deal you could get under a Democratic president, and if a Democrat wins, the other options will be way, way worse."
Given the absolute trash-bin fire that is the Republican primary race right now, hoping for a Republican administration in 2017 seems pretty risky. So Republicans are left with two absolutely awful (for them) options. The first is to stick to their guns, refuse to take up the nomination, and hope that somehow the septic tank train wreck of the Republican primaries produces a viable candidate. This option is making a huge assumption, and getting it wrong probably results in a nominee who looks a lot more like a 45-year-old version of the Notorious RBG, who will sit on the bench for 25-35 years instead of Garland for only 15 years or so.
The option of not taking up the Garland nomination might seem like it offers some glimmer of hope for Republicans — assuming their man wins in November, whoever he may be — but the unpopularity of failing to take up a nominee for consideration hurts their presidential and congressional aspirations even further and increases the odds of adding more liberal justices down the line. The Republicans also won’t be helped by the seeming hypocrisy of unilaterally opposing a nominee they loved just five years ago.
Garland looks like a really good deal in comparison, but taking the bait would require that Senate Republicans backtrack on the obstructionist words they used earlier. Given the Republican base’s antipathy toward compromise, elevation of hardliners like Ted Cruz, and the eviscerating of senators who do compromise, it could further alienate party members. This in turn would drive them further toward outsiders like Cruz and Donald Trump, and thereby further damage the party's presidential hopes this year.
The Senate Judiciary Committee is digging in its heels, but we will see how long it takes to do the same calculations laid out here. Still, when looking at the two options on the table, a paraphrase of the old gambling adage applies here, “The (White) House always wins.” Either way they choose, Republicans probably lose.
Well played, Mr. President. Well played.
BRYNN TANNEHILL graduated from the Naval Academy in 1997 before serving as a campaign analyst while deployed overseas. She later worked as a senior defense research scientist in private industry; she left the drilling reserves and began transitioning in 2010. Since then, she has written for OutServe, The New Civil Rights Movement, Salon, Everyday Feminism, The Good Men Project, Bilerico, and The Huffington Post.