Wednesday, March 16, 2016

Superme Court nominee Merrick Garland

SCOTUSblog publisher Tom Goldstein last week looked at five potential nominees, including Garland. He rated Garland as the most confirmable of the five, because he's "essentially, from central casting." (Handicapping the five potential nominees 03/11/2016) Goldstein says Garland is "very deeply respected, even if he would not be among the Court’s most liberal Justices."

He assumes that a new Democratic President would re-nominate the same person, and explains why a distinctly liberal choice would have some advantages:

The relevant question is essentially who can be confirmed in the next Senate, not this one. And given the trajectory of the party nominations, there is a realistic chance that Democrats will retake the Senate. That puts on the table the prospect of confirming a materially more liberal candidate than could get through the current Senate. That is so because, in response to Republicans’ refusal to consider this nominee, a Democratic Senate majority would exercise the nuclear option and end the filibuster for Supreme Court nominations.
Is it any surprise that Obama chose a white guy likely to be less liberal than the current Court liberals with a bland "from central casting" image?

Goldstein did a longer profile of Garland back in 2010, The Potential Nomination of Merrick Garland 04/26/2010. I can't say I find this part encouraging:

In 1995, President Clinton nominated Garland for an opening on the D.C. Circuit, and he received a hearing in December of that year. During that confirmation hearing, Garland was asked about "judicial activism." He answered that "[f]ederal judges do not have roving commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it "“ not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinion on the issues of the day."
For better or worse, Goldstein said of Garland, "He is well known to the Justices and is likely the most respected by them collectively, particularly the more conservative Justices." (my emphasis)

There's nothing to indicate he's going to be another Scalia. But in a year where voter enthusiasm on the Democratic side will be especially important in determining whether the Dems can take the Senate, I'm not sure how much excitement he'll generate.

This from Goldstein is also notable, "Because the D.C. Circuit's caseload is dominated by regulatory challenges, few of the cases in which Judge Garland participated involve hot-button social issues like abortion or the death penalty."

The Democratic President couldn't find a nominee with a clear record supporting abortion rights?

Noah Feldman explains some of the negotiating considerations involved with Garland's nomination in Obama Makes a Smart Bet for the Supreme Court Bloomberg View 03/16/2016. Including, "Among court-watchers, it’s long been understood that Garland needed unique circumstances to be nominated: the retiree had to be a white man, and the Senate had to be Republican. Otherwise, why would a Democratic president nominate a moderate white man?" (my emphasis)

Maybe part of the consideration is that our liberal Republican Democratic President preferred a "moderate" to someone who Democrats could assume would be a safe vote for abortion rights and against Citizens United.

Rick Hasen at Election Law Blog writes, "Garland is indeed a moderate, someone who will not excite the Democratic base the way other nominations would." Awesome. (Merrick Garland as Obama Compromise #SCOTUS Nominee, But Not (Only) Because of His Moderate Politics 03/16/2016)

This kind of encouraging, though (Bri Holmes, President Obama Nominates Merrick Garland to Serve as 113th Justice of the U.S. Supreme Court Free Speech for People 03/16/2016):

“It is time for a bold, inclusive, and impact-driven effort to overturn Citizens United and its doctrinal predecessor, Buckley v. Valeo,” said John Bonifaz, co-founder and president of Free Speech For People, a next-generation leader in the democracy movement founded on the day of the Citizens United ruling. “Judge Garland’s nomination brings hope that a new Court majority could indeed overturn Citizens United and Buckley, and make real the American ideal of ‘one person, one vote.’”
Mark Joseph Stern is not impressed with the choice of Garland: Supreme Court Breakfast Table, Entry 1: Merrick Garland is an extraordinarily disappointing choice Slate 03/16/2016.

Dahlia Lithwick takes a more positive view, Supreme Court Breakfast Table, Entry 2: Cut Merrick Garland some slack. Slate 03/16/2016:

Don’t be too hard on Merrick Garland, Mark! He is, by every single measure, a fantastic judge. In his 19 years on the U.S. Court of Appeals for the District of Columbia Circuit he has been reliably center-left. Sen. Orrin Hatch, Republican of Utah, recently suggested he would be a good moderate nominee and that Obama wouldn’t be reasonable enough to nominate him. Never underestimate Obama’s ability to be reasonable.
Recommend by Orin Hatch as a "moderate." This just does not fill me with confidence and optimism.

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