Some Thoughts on the Garland Nomination
I interviewed for a clerkship with Judge Garland right after he was confirmed to the D.C. Circuit. It was a disaster, but entirely because I was young and didn’t understand how to handle those sorts of situations. He’s an excellent judge, though I don’t think that Senate Republicans will allow the nomination to go forward for now.
I want to make two observations about this choice. One is that it shows how hard it is break the recent paradigm for Supreme Court Justices (someone from Yale or Harvard who served as a federal appellate judge). Only Elena Kagan partially breaks with this template (she was not a judge) going all the way back to Sandra Day O’Connor.
The other is that I think this choice could pose a problem in the Fall. Suppose that in October Senate Republicans look at the polls and conclude that Hillary will win and the Democrats will take back the Senate. Or suppose it’s November and those things have happened. At that point Garland will look a lot better than what’s behind Door #2. If they try to confirm Judge Garland then, though, will Hillary or some Senate Democrats object and try to hold out for a different choice? Would the nomination be renewed in January 2017 under those circumstances?
In the end, I wonder if Judge Garland will be another Al Gore. You win the prize, but you don’t receive the prize.