Should President Clinton Nominate Merrick Garland for the Court?

With all due respect to Yogi Berra, I’m going to talk about one of the first major decisions that President Clinton will have to make. (I say “have to make” because I doubt that the Senate will confirm Judge Garland in the lame-duck session.  If they do, though, then never mind.)

One factor is whether Republicans or Democrats control the Senate next year.  If the GOP retains control, then the argument for nominating Garland again gets stronger, as he is easily confirmable in a non-election year.  If Democrats win the Senate, though, then the choice is more difficult.  The President could nominate a younger and more liberal judge, or perhaps go for younger and more diverse in some sense.  Why stick with Garland?

I suppose one answer is that Judge Garland is being treated badly and not nominating him next year would be, well, treating him even worse. Nevertheless, there is no vested right in a nomination of this sort from President to President (even of the same party). There is also the thought that even with a Democratic Senate the President may not want her first Supreme Court nomination to cause a fight.  She is almost certain (you would think) to get at least one more vacancy, and maybe that is the time for a different pick.

A contrary case could be made, though, that by making that different pick now the President would discourage Senators from repeating the Garland precedent. Picking Garland again basically says to the Senate that there is no real cost to imposing a presidential election year blockade. If someone else gets picked who is worse from the Senate’s point of view, future Senators might say “See, that strategy backfired. Don’t do that again.”

But is this true?  By the time another Justice dies in a presidential year when the Senate and White House are controlled by different parties, we might all be dead.  Will anyone really care about the Garland precedent except for some historians?  Seems doubtful.

Anyway, let’s revisit this after Election Day and see where the Senate stands.

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9 Responses

  1. Mike Stern says:

    It seems to me that the Senate will confirm Garland in the lame duck, unless Obama withdraws the nomination.

  2. Brett Bellmore says:

    I certainly expect that the Senate will confirm Garland in the lame duck session, unless blocked by Democrats. The only reason they haven’t confirmed him already is fear of retaliation by the voters, and that fear will be at it’s lowest ebb right after the election.

    If Garland is not confirmed for any reason, and Clinton elected with even a tied Senate, I expect she will nominate somebody else, someone much more extreme. She has already committed to packing the Court with as many judicial extremists as possible. She would NOT want one of her limited opportunities to pack the Court to be spent on a comparative moderate like Garland.

  3. Joe says:

    Clinton is likely to see Kagan and Sotomayor as the model and if that is what “extremist” means, Alito and Roberts are in the other direction. I don’t think so. I think Alito is simply a conservative justice, if iffy to replace the swing justice O’Connor. It is telling that Garland, which by any objective standard IS a moderate is only deemed “comparatively” so. It seems to me that “extremist” just means that Brett’s views are fairly conservative, so that left of center (or even moderate like Garland) is seen as “extreme” to him personally.

    • Brett Bellmore says:

      Where did I say I thought Garland was extreme? I would say he’s a moderate Democrat, which is nothing I’d want on the Court, but that doesn’t make him an extremist.

      *I’m* an extremist. I’m not under any illusions about that. Garland is right (OK, left.) in the stinking, stagnant mainstream. That’s a horrible indictment of that mainstream, but it’s still true.

      And that’s why, if they haven’t already confirmed him if and when she takes office, there’s little to no chance she’ll renominate him. Because she doesn’t want somebody who’s in the mainstream. She wants a rubber stamp who’ll have no qualms about overturning any and all precedents that get in her way. She’s already said as much.

      • Joe says:

        You said he was “comparative moderate” — why use that qualifier if he is simply a moderate? The qualifier makes him sound less moderate than he really is … he is moderate “comparative” to the “extremists” HRC allegedly will appoint.

        That’s all I meant there.

        Your extremism and policy positions are noted but that doesn’t make HRC’s picks “extremists” — she is likely to pick people comparable to Ginsburg (deemed a moderate when she was appointed), Sotomayor and Kagan. These are simply put average liberal nominees, not “extremists” akin to (both ends) Thomas and Thurgood Marshall.

        I’m unsure what President wants to pick someone who would not generally speaking follow the ideological positions they support. Obama’s willingness to compromise in Garland was rejected. You were happy about that. You should be mad at Republicans there since you think a “rubber stamp” will now come in. This never actually happens — FDR didn’t get rubber stamps in the long run. It’s a caricature anyhow.

        Anyhow, the “mainstream” includes liberals who you as a conservative extremist don’t like. I am not a big fan of Alito, but he is in the conservative mainstream. He is not an “extremist.” Clinton, someone people on “the left” repeatedly wish was more liberal on certain subjects, will likely to pick a liberal pick of that sort.

        • Joe says:

          ETA: Your first comment predicted if Democrats win the Senate that Republicans will confirm Garland. I’m not sure if that would happen but it might. But, it’s a risk, and their hardball net will help encourage “rubber stamps.”

          And, “rubber stamps” seems to be the average practice of a President appointing justices that generally following their policy views though long term (even FDR’s justices split on various issues) this tends to be somewhat difficult to do. Again, that sounds like a difference in opinion of an “extremist” conservative and a somewhat left of center (though on various issues, less so) liberal.

        • Brett Bellmore says:

          Joe, he is moderate compared to the people already on the court. “Moderate” is a relative measure, inherently.

          I do not take a Ptolemic view of politics. I’m an “extremist” only because of where I stand relative to the general population, in a different general population I might be regarded as “moderate”. Similarly, Garland is “moderate” compared to the bench at large, only because it currently has the composition it does. Not in some Platonic sense.

  4. Joe says:

    Not that they are asking, but I think it is in the Republican’s interests to confirm Garland during the lame duck if Clinton wins & the Dems win the Senate, especially now that Clinton is on record saying they should. The election was their test, it was met. And, he’s better than any replacement Clinton likely would pick, a younger and somewhat more liberal (the first part is probably more important) person. They have a lot of ways to oppose her and the minimum show of good faith regarding government here very well might help them.

    If they do not, Clinton might re-nominate Garland to use her energy on other battles & because she wants to support a good solider that was a Clinton Administration guy in the beginning anyways. If not, the reason would be to pick her own person & someone younger. And, as a sign of power to pay back the Republicans for their novel obstructionism. The signal was not just for Supreme Court vacancies. It is a signal for them to learn a lesson in general. We, the Democrats, gave you a pretty good deal but you played hardball. You lost. Election has consequences. Lesson for when you want to try that again, even if it’s not the exact same thing.

  5. PJ says:

    I can think of a few good reasons why HRC, after winning the election, should state that Merrick Garland is her choice and that she would like hearings held immediately:

    1) From the democratic standpoint, this confirms what has been their message all along — that the pick was Obama’s to make, and that the Republican delay was improper. (In contrast, if she were not to say this and were to nominate someone else instead, that would give some credence to the Republicans’ position.)

    2) From the standpoint of those wanting change on the court, the substitution of Garland for Scalia will result in a dramatic change in case outcomes in many fields. Garland is likely enough of t team-player for the democrats that (unlike say Ginsburg) he’ll time a retirement to ensure a democratic successor, rather than hanging on for personal gratification and chancing a republican. And, based on his DC Circuit record, Garland may actually be better than many of the other possibilities at bringing along Roberts and Kennedy — a useful skill both for the Court’s overall prestige/stability and for the possible event of a Republican majority returning in 4-5 years, if RBG, for instance, hangs on until Hillary loses the 2020 election and gets replaced by Paul Ryan(!)

    3) Democrats have a lot of vulnerable senators up for reelection in purple States in 2018. I’m betting that they would very very much like to be confirming Garland, rather than some of the others who would make more radical dems happy.