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.

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3 Responses

  1. Joe says:

    Al Gore didn’t win the prize — the system basically is that you have to win the most electoral votes based on official counts. At best, he should have won the prize because he did what it took to win (most votes in Florida) but a bad call was made.

    Multiple people were nominated for something and for whatever reason not confirmed. Dawn Johnson still rankles for me there.

    I don’t think the Democrats will block him if it was up to them. Talking about Al Gore, Dems didn’t do anything to block the official count in Congress, not even allowing a pro forma challenge. I think the chance Garland might be confirmed by a scenario where it is in the Republican’s interests late was a reason he was chosen & Obama checked with the Senate Democratic leadership on just that count. Garland was a Clinton appointee — Hillary Clinton might even see him as a good choice in this era to replace Scalia.

  2. Brett Bellmore says:

    Garland is an excellent judge if your ideological inclinations are as a law and order Democrat.

    If your ideological inclinations are at all similar to those of the people who elected the majority of Senators, he’s a terrible judge. Or, rather, would be a terrible justice. The majority of Senators were elected to do a job, and not confirming Garlands is part of that job.

    However, since the Senators do not actually represent the people who voted for them all that well, having systematically different opinions on a wide range of matters, I expect that they’re inclined to confirm him.

    They’ll just wait until the primaries are over to hold the hearings, so as to deny the voters an opportunity to punish them by voting against them in the primaries.

  3. Joe says:

    Garland is an “excellent judge” even if you disagree with him positions on various issues. A range of conservatives, maybe not the ones Brett likes but a range of them, have said this and now some are on record supporting this specific nomination.

    This type of excellence can result in a Republican Senate confirming nominees of Democratic Presidents & vice versa. This repeatedly happened. This is “their job” under traditional understanding. They also “did their job” by moving the window on the type of justices and judges Obama could successfully nominate. Loads of people think this, including those who voted for Republicans for a range of reasons.

    The people voted Obama too. Does he count? Divided government means each side in these cases have to compromise. Garland is just that. Voting against Garland in fact is very likely short-sighted. Clinton more likely than not will win. Republicans will not — and the people who voted for enough of them along with Democrats think this too — simply never confirm anyone until Clinton nominates Paul Clement though who knows if he is good enough for Brett (in the Heller case, Clement supported a middle of the road gun rights position). The result is likely — more so if Republicans lose the Senate — a justice MORE liberal than Garland.