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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