Election 2016

Did Obama Blow It by Not Nominating a Progressive to the Supreme Court?

The GOP Senate isn't budging and Democrats are unmoved.

When President Obama nominated Judge Merrick Garland to the Supreme Court, it appeared that Obama was well-positioned to outsmart Senate Republicans, because seven of them had previously voted to appoint the widely respected centrist to the U.S. Court of Appeals in Washington, where he now is chief judge. Not only had Judiciary Committee Chairman Sen. Orinn Hatch of Utah dropped Garland’s name as acceptable after Justice Antonin Scalia died, but the president didn’t do what most critics predicted, which was pick a non-white progressive—and woman—who could serve for decades.

Many Senate Republicans said they respect middle-aged, white Garland, but they stuck by their deplorable party line that President Obama should not choose a justice in his last year in office. That fueled the predictable partisan rhetoric on both sides angering or exciting people; that any appointment by Obama would shift the court’s philosophical majority from conservative to liberal for decades. As Democrats and Republicans dug in for a long fight, pundits and lawyers identified various pathways for seating Garland.

Obama could make a recess appointment while the Senate is out of town, which was how Justice William A. Brennan Jr., began his Supreme Court career, although he was later confirmed by the Senate. Or if the GOP lost its Senate majority in November (but won the presidency), Senate Democrats who will be sworn in on Jan. 3, 2017 could seat him before the next president will be inaugurated on January 20.

Then the Democratic candidates, Hillary Clinton and Bernie Sanders, weighed in. Clinton focused on the Senate GOP obstructionism, saying, like the White House, that they should do their job and hold hearings and vote to confirm or reject Garland. Sanders said if elected he would ask Obama to withdraw the nomination so he could appoint a more progressive justice. The White House’s spokesman said Obama would not do that. Meanwhile, Clinton has not signaled she would resubmit his name if elected, but ambiguously said, “The next president may also nominate someone very different.”

Outside these speculative scenarios, many progressives have let it be known that they are unimpressed with Obama’s choice of a former prosecutor who, while first appointed to the federal bench by Bill Clinton and presumed to be center-left on social issues, has a record of voting with conservatives on law endorcement and national security. Their remarks have been careful and cautious, because they know, like the GOP, that the ideological majority of the court will shift on many issues with Scalia’s replacement.

But at the same time, there is a lingering question that gnaws at Democrats: did Obama blow it by nominating a centrist judge who hasn’t forced the Senate Republicans' hands and also hasn’t ignited his party’s passions to make the court’s fate an election year issue? That question is highlighted not just by the lack of excitement around Garland, but by the fact that the thrust of the president’s nomination campaign is to promote how unfair the Senate Republicans are—not how magnificent a jurist Garland would be in upholding core constitutional values.

“This is not really a campaign for a person,” said Murshed Zaheed, the political director of Credo Action, in a widely quoted statement that called on the Senate to hold hearings and a confirmation vote. “This is a campaign for a process, a campaign for the constitution and a campaign against a band of extreme right-wing radical Republicans who have taken the Senate hostage.”

Republicans, of course, have been quick to tar Garland with the same clichés they apply to Obama: that he’s liberal. But just because the Republican National Committee’s "Meet Merrick Garland” research file calls him liberal 32 times doesn’t make it so. In fact, the most informed assessments of his record show that he’s sided with conservatives as often as with liberals, which undoubtedly, is why Hatch endorsed him and Obama picked him. That moderation is seen as being consistent with past court picks by a Democratic president, even if 2016 is a year where being politically moderate is not in style.

But the big question is, did Obama blow it with such a temperate choice, because a new Court’s majority will arguably have a bigger impact on the nation’s future than the next president since ideological swings in the Court last longer than presidents. At the very least, the comments by progressives since Garland’s nomination are not exactly the stuff that is motivating Democratic voters in 2016, even though a White House spokeswoman called him “one of the most qualified judges we’ve seen in a generation.”

“President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court,” said Charles Chamberlain, executive director of Democracy for America, in a widely quoted comment.

“If a Merrick Garland nomination makes sense at all, which is disputable, it only makes sense at this exact moment in time,” Adam Green, Progressive Change Campaign Committee co-founder told The Hill, a Washington publication. “It would be nonsensical for a new Democratic president to nominate him and equally nonsensical to pass Garland in a lame duck Congress if a Democrat wins the White House."

“I would have preferred an African-American female to be nominated,” Rep. G.K. Butterfield, D-NC, head of the Congressional Black Caucus, told The Hill. “That has been the position of the Congressional Black Caucus. That is a demographic that is not represented on the court––never has been––and certainly… Justice Clarence Thomas does not represent the African-American viewpoint.”

Boston Globe columnist Dante Ramos recently wrote that liberal critics like these are living in a “fantasy world,” and that Obama’s goal is getting a new justice on the court. He explained these expectations were a reflection of a year where the presidential candidates creating the most excitement are outsiders. “The left-wing criticism of Obama’s pick reflects a deeper tension in Democratic circles,” he said. “Sanders’ unexpectedly strong performance against Hillary Clinton shows that many in the party want more than the earthbound, calculated moderation.”

But it may well be that the same “earthbound, calculated moderation” that is behind Obama’s nomination of Garland is running into an obstructionist Senate GOP fantasy world and a cold reception among the most activated sectors of the Democratic base in 2016. In other words, it is an open question if Obama blew it by not making a historic progressive nomination to the Court because the GOP was going to fight him anyway. 

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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