Liberals, and especially African-American liberals, should not encourage Senate confirmation of Garland to the Supreme Court
Repubs apparently now think they can have the last laugh. Senate Repubs reportedly now are considering whether to confirm during the lame duck session after the election if Clinton wins. But of course, then Garland would be expected to withdraw if Obama does not withdraw his name saying that Clinton and the new (Democratic-controlled) Senate should handle it.
— Me, here, yesterday
Today, Greg Sargent writes at length about that possibility:
[T]here is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.
That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.
The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.
But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.
But Obama could decline to play along with that scenario.
His post is titled “How Obama could get last laugh in Supreme Court fight.” He posted this update:
It occurs to me that I probably should have argued that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Hillary after the election. And liberal Dems (some of whom are already disappointed by the Garland pick) would be getting their preferred outcome. I’m not predicting this will happen, just floating it as an interesting possibility. You may also see some liberal pressure on Obama to do this, if Democrats secure a big victory in November (though whether Obama would bow to it is anybody’s guess), which would also be an interesting scenario to see play out.
But liberals should not push this man’s confirmation, and certainly African-Americans should not. To quote Politico’s Josh Gerstein, “A former prosecutor, Garland often split with his liberal colleagues on criminal justice issues.”
Garland would not bring the court leftward in the absolutely critical realm of criminal justice issues, including jurisdiction to challenge via federal habeas corpus petition anything state-court criminal convictions or sentences on grounds that some aspect that lead to the result was unconstitutional–including police or prosecutorial misconduct and ineffective assistance of counsel, and including immunity of cops and prosecutors from civil liability in civil rights lawsuits.
That, in fact, reportedly was a big plus for him in Obama’s opinion in 2009 and 2010 when he was being considered to replace Souter and Stevens–even though the Dems controlled the Senate.
Thomas Friedman, of all people, had a terrific line about Obama in his NYT column a day or two ago, something like, “Let’s face it; you wouldn’t want President Obama to be the one selling your house for you.” The column, which really was quite good, was about the TPP, and what Clinton should say about it now. But that comment about Obama was hilarious, and absolutely spot-on.
I’ve thought for about seven years now that Obama’s primary concern is to be considered a moderate by The People Who Matter. I don’t think he cares all that much about anything else, really.
Or maybe he thought in 2009 and 2010 and today that what the Supreme Court needs is a former prosecutor who will join with Samuel Alito in anything related to criminal law and law enforcement.
Garland is being hailed in some quarters as a brilliant legal mind, but I have yet to see an iota of evidence of it. On a par with Samuel Alito, maybe? Or maybe just in comparison to Samuel Alito. And best as I can tell, not by all that much.
UPDATE: This article by Janell Ross on the Washington Post’s The Fix blog about both Obama and Garland is outstanding. I disagree with her that the anger toward Obama among what she calls the far left (which as a Sanders supporter I guess I qualify as part of, right?) is misplaced, but I agree with her about pretty much everything else she says in the article. It’s a terrific analysis of Obama’s presidency as well as of Garland’s career.
Added 3/17 at 4:40 p.m.
SECOND UPDATE: Just saw this article on Politico via Yahoo News, titled “Black lawmakers irked by Obama’s Supreme Court choice“. Their concerns are that Garland is a moderate rather than a progressive, and that Obama didn’t consult them before finalizing and announcing the selection. Some of them also are angry that a member of a racial minority wasn’t selected.
Good for them. I myself don’t care one whit about the nominee’s race, gender, family background, religion, ethnicity. I care only about the person’s professional experience, views on legal issues I care about, and intellect, because that is what will determine how this person will effect the law. I can’t think of a clearer in-your-face affront to African Americans, at this particular moment, than the nomination of a pro-police, pro-prosecutor, anti-habeas corpus judge to be the swing justice on the Supreme Court for, very likely, the next several years.
I also have to say how very retro it is that Obama thinks the public is 1980s-’90s-era pro-police, pro-prosecutor. Then again, for some people–i.e., politicians–it will forever be the 1980s or ’90s.
Added 3/17 at 7:15 p.m.
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Why would anyone anticipate that Clinton would make a different, let alone more liberal, candidate choice?
Well, for starters, the Senate probably will be under Democratic control, so she would be free to do that. Second, Garland is not known as all that friendly on women’s issues, I read somewhere yesterday. Third, she most likely will want to pick someone much younger, probably a women, or a racial minority member, or both.
Ad then there’s this: For a candidate who will have road into office on the shoulders of African-Americans, defeating a true liberal in the process, it would be untenable for her to just ignore issues concerning police and prosecutor misconduct in criminal cases and in civil rights lawsuits, and federal-court habeas corpus jurisdiction to review the constitutionality state-court convictions.
It hasn’t gotten any attention, surpisingly, but her husband when he was running for reelection in 1996 signed into law the statute that was intended to make it much harder for people convicted of crimes in state court to get federal-court habeas review, and that the Supreme Court has interpreted as effectively ending federal-court habeas review of the constitutionality of state-court convictions. The chance that Merrick Garland would vote to reverse those Supreme Court opinions is roughly zero.
In fact, this is really the only chance that the Supreme Court can be turned away from its Conservative Legal Movement dramatic rewriting of American law, for who knows hoe many more years.
Goodwin’s point should be well taken. Question; does the so called Easter recess of the Senate qualify as a period during which Obama could legally make Gardner a recess appointment? He’d have good reason to take that tact given the virtually unanimous obstruction coming from the Republicans and the tenuous rationales that they are offering to the public to support their stand. First of all the public does not have a right to be heard regarding such appointments. They expressed that right when they elected Obama as the President and his term is still running. And the position that the President has the right to nominate and the Senate has the right to forestall and ignore that nomination ignores the fact that the Constitution doesn’t use the term “right to nominate.” Instead it says “shall nominate, and by and with the advice and consent of the Senate, shall appoint.” Shall implies an obligation, not a right.
Oh, I don’t think Obama would consider for a moment doing that, Jack, and I sure wouldn’t want him to, even if I liked his choice of nominee. For one thing, he just nominated the guy yesterday, and it’s not a certainty yet that he won’t get a hearing.
But more than that, I think huge swaths of the country would be offended by it. It would be a big selling point for Trump.
Does Garland have any sort of record on business issues? Do we know how he’s likely to rule on, for example, standing for class action suits? Or claims of federal exemption with regard to regulations, or how voluntary adhesion contracts are?
From what I’ve read in the last two days, he’s extremely deferential to executive-branch agencies and on that ground almost always rules in favor of the NLRB and the EPA. I haven’t read anything about his rulings on class actions on adhesion contracts.
My take from all that I’ve read now is that he’s just straight-down-the-line, letter-of-the-most-recent-Supreme-Court-opinion-on-the-issue, except in criminal cases and civil rights lawsuits against law enforcement folks, in which he goes the extra mile for the prosecution and for the law enforcement defendants.
So if he’s ruled in recent years on adhesion contracts, he’s ruled that they are absolutely, of course, no question about it, voluntary. And if he’s ruled on class action certification, he’s ruled that no class can ever be certified because the Federalist Society really, really does not like class action lawsuits.
But fear not. He has a brilliant legal mind.
Who says HRC would win? I do not see any excitement. Low turn out except in Red States.
Who thinks HRC could excite enough support to beat any of the GOP sters?
Better measure the timber of the ‘anybody but Clinton’ (ABC) crowd.
Is ABC as much an issue as ABT?
Clinton will win because Trump won’t. That’s the presumption, and I think it’s probably accurate. But in the last week or so, including since Tuesday’s election results, I’ve seen a number of articles, some by longtime pundits who not long ago thought a socialist, even a democratic one, couldn’t win no matter what, saying that they and others they’ve spoken with are very concerned about Clinton’s lack of appeal to pretty much anyone younger than 40. Some have said outright that they now believe that Sanders would be the stronger candidate against Trump.
But, again, as unappealing as Clinton is among a majority of the public, Trump is substantially more disliked among a majority. And turnout among younger people and racial minorities will be almost surely be very high because of Trump.
“Question; does the so called Easter recess of the Senate qualify as a period during which Obama could legally make Gardner a recess appointment?”
No. The Constitution says, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Obviously, the vacancy on the Supreme Court has already happened. Justice Scalia, no matter how much the left might think he was the Anti-Christ, will not do an anti-resurrection and die again during the Easter Recess.
I’m going to hold you to your promise that Scalia will not be resurrected, Warren.
Yes, that sentence in the Constitution has been interpreted apparently to mean something that it doesn’t say, but in any event it’s inconceivable that Obama would do that.
” But, again, as unappealing as Clinton is among a majority of the public, Trump is substantially more disliked among a majority. And turnout among younger people and racial minorities will be almost surely be very high because of Trump.
” On the other side of the aisle, 19th Ward residents pulled 18,296 Democratic ballots on Tuesday, compared to 11,800 Democratic ballots in 2012. ” Trump may pull desperation Democratic turnout.
OTH, Hillary may bet arrested.
I’m also having trouble with the idea that there will be a Democratic sweep of the senate. I think Trump is good for the kind of turnout that doesn’t favor that.
I find it more than ironic that in a thread that is talking about the obstructionism of the GOP members of Congress there is another shot by Green Lanterns about how Obama did not negotiate(“Or even try!”) with those GOP members of Congress during the past seven years.
Sigh, not unusual as this is all they can muster as an argument. The usual innuendo supposition and conjecture.
Neither one of you guys read the last six paragraphs of the original post nor the two updates to it, all of which address exactly the issue of Obama’s decision to choose Garland this time and his decision in 2009 and again in 2010 to have Garland among his top three or four contenders.
So, yeah, Bill, sigh indeed.
The facts about Garland are the facts, Bill. He’s an obeisant apparatchik whose defining moment in his career–the moment that he says framed his views of law–was as lead prosecutor of Timothy McVeigh–as if most criminal defendants have top defense attorneys whose defense required the government to pay about $1 million in attorneys’ fees and for technical tests and expert-witness fees, and private investigators. And as if the all criminal defendants are as clearly guilty was McVeigh was, or guilty at all. And as if all criminal defendants are prosecuted in federal rather than in state court, by honest prosecutors using honest testimony by police, honest expert witnesses who are actual experts testifying about things that are legitimately susceptible of expertise, are not identified in a suggestive lineup, receive all the “Brady” information from the prosecutors that Brady v. Maryland requires, and are not stopped by a cop on pretextual grounds.
Just think about this, Bill. I mean it.
You know what just struck me, Bill? Garland probably has never heard a habeas case under that awful 1996 AEDPA jurisdiction statute, because he’s a judge on the D.C. Circuit. His court hears no habeas petition cases challenging state-court criminal convictions, because the only habeas cases his court hears are those challenging convictions in D.C. And D.C. is not a state. I don’t think AEDPA covers D.C. local criminal courts; I’m not sure about that, but I don’t think so.
That occurred to me as I was reading this article about Garland by WashPost Supreme Court correspondent Robert Barnes:
“Politicians and diapers must be changed often and for the same reasons”. Mark Twain… The elites lost control of the nominating process because of a collapse in social values as both parties voters see disappearing economic opportunities…See more opinions on this from Paul Krugman in todays Opinions “Republican Elite Reign of Disdain”. 3-18-16 NYT.
“Obeisant apparatchik” is not a fact.
John Paul Stevens hardly had a spotless record when he was appointed as a Republican by a Republican. “Law and order” was a core Republican mantra then. But he learned and he grew, because he was thoughtful and a person of good faith who actually listens to arguments of both sides. It’s hard to see Alito and Thomas as anything other than pure ideologues whose rulings always advance the interests of the Republican Party and big corporations.
Maybe Garland has the judicial temperament of a Stevens. From what some write, it sounds like his tendencies are similar. A good justice would be self-aware enough to recognize that on criminal justice issues, the only side represented by past experience on the bench is the prosecution side. Supposedly, Garland is “good” on labor, environment, gender and gun control. He appears to respect precedent, which the right wingers do not if it doesn’t support their political opinions or was issued at any time in the last 80 years. But a questionable approach on one set of issues gets him put into a Conservative Legal Movement box? Is that a “fact”?
What is a fact is that Obama has nominated him. That is a given now. If it’s possible to maneuver him into a confirmation (since public and editorial opinion is dumping heavily on the Republicans for the obstruction and threatens some Senators who may have thought they were safe), does it make sense to stop that in the hope that Clinton will get elected (which looks probable now but is hardly certain) and will nominate someone with a more across-the-board liberal record?
Garland has next to no chance of being on the Supreme Court absent a flurry of retirements in the next term. Clinton would use the Scalia seat differently, for sure, if for no other reason than age. The only way to get him on would be for Republicans to shock the world before their convention and just confirm him with no hearing….”we know this guy and he’s okay”. Give the slightest warning that they are going to take this slot off of the table for the next President because they know they are losing in November and this option is gone. The Garland nomination will be withdrawn around Labor Day is my guess. If you wanted it to be as funny as possible, you could force Republicans to basically vote straight party-line “Aye” by have Democrats vote “Nay”.
Justice Garland nomination is a side show.
Obama did his usual pander to middle of the road. That makes GOP senators disenfranchising 2012 vote a wash as the progressive taken in by Obama were mislead which is a form of disenfranchisement.
Lying to the people is a grave wrong, which seems to be popular in the dysfunction called our “republic”.
I was not even talking about Garland. I was talking about the idea that, despite all evidence to the contrary, Obama’s decisions are basically “middle of the road” and have not been impacted by the makeup of Congress.
Ooops. Sorry, EM. Misunderstood.
Most politically-minded people judge these justices on whether how well they twist or selectively interpret the law to lean in their preferred direction, and not their commitment to sound and careful reasoning about the often very particular matters before them. But that attitude is anemetha to very notion of law, or at least betrays a deep cynicism about our ability to be a nation of laws.
Let legislators legislate for your values, and judge them thus. Let judges be judged by the care with which confront each issue before them
Nicely said. Did you mean anathema?