The GOP’s treatment of Merrick Garland is disgraceful.

The GOP’s Treatment of Merrick Garland Is Disgraceful

The GOP’s Treatment of Merrick Garland Is Disgraceful

The law, lawyers, and the court.
March 17 2016 11:08 AM

Supreme Court Nihilism

The GOP’s treatment of Merrick Garland is disgraceful.

Barack Obama
President Barack Obama nominates Judge Merrick Garland to the Supreme Court in the Rose Garden at the White House on Wednesday.

Mark Wilson/Getty Images

Heading into Wednesday morning, my thoughts about Barack Obama’s nominee to fill Antonin Scalia’s vacant seat at the Supreme Court were focused on Sri Srinivasan. It was assumed widely that Srinivasan would be the pick, because he was a moderate, approved by a 97–0 margin just a few years ago, and because it would be the sort of big legacy pick (first Asian justice, first Hindu justice) that has mattered so much to the president in his prior nominations to the high court.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

More immediately, I was focused on what such a pick would mean for the increasingly grotesque national conversation we are having around race in America. I suspected that Senate Republicans would demand to see Judge Srinivasan’s birth certificate (he was born in India), that Donald Trump would instantly advocate putting him on a watch list, and that things would only degenerate from there. With his surprise nomination of Merrick Garland on Wednesday, Obama sidestepped that conversation. But that doesn’t mean things aren’t about to degenerate in another, horrible way. They are. (Blessedly, at least it won’t be about xenophobia and insults.)

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Before I get to that, though, here’s what you should know about Merrick Garland. The chief judge of the U.S. Court of Appeals for the D.C. Circuit, Harvard-educated Garland has been on that court for 19 years and is one of the most experienced candidates to ever be selected to the high court. He is Scalia’s polar opposite. A careful writer, an infrequent dissenter, a true believer that judges interpret law and don’t make it. That Obama chose to take identity politics off the table with the selection of another Harvard-educated white man will disappoint many of us who had desperately hoped for a court that looks more like America. But at a moment when people are quite literally fighting in the streets about what America should look like, the idea of Obama seeking to turn down the temperature isn’t all that surprising. By picking a “judge’s judge,” Obama has tried to steer the conversation from one about politics to one about courts. Right or wrong, he still believes there’s a difference.

But Obama sidestepped another problem by tapping Garland over Srinivasan: awkward conversations about Srinivasan’s relatively thin appellate record. The pick also serves as a corrective to the trend of presidents picking nominees without discernible records, as in Elena Kagan, who came to the court as an almost perfect blank slate. Whatever you may say about Garland, he wasn’t afraid to put everything you might want to know about his judicial leanings in writing. If you are about to say that the esteemed chief judge was actually a secret conservative/secret liberal who has merely been biding his time for 19 years, writing centrist opinions while hoping he’d get the call, well OK. But the more likely scenario—to the distress of both the left and the right—is that Garland is one of those vanishingly rare creatures who has shown his work.

That doesn’t mean that it’s perfectly clear what ideologies and political preferences he might bring to the court. Over the course of his tenure on the second most influential court in the land, Garland was against Guantánamo detainees until he was for them. Tom Goldstein at SCOTUSblog reports that when Garland was asked to rule in civil rights cases, he generally sided with plaintiffs alleging rights violations. Goldstein also notes that Garland is a worry for progressives because he has overwhelmingly sided against criminal defendants. Based on his myriad opinions, it’s fair to say that he has ruled in favor of environmental regulations and that he is incremental, cautious, and wary of outspoken dissents. As the Wall Street Journal suggests, he brings folks to a middle place, which is weird and disorienting in a world without middle places.

Nobody who has followed Garland’s career will be surprised that his almost two-decade record reveals someone who is disinclined to get out in front of the law but tries hard to narrowly construe it. This is not a fount of quotable sound bites; it’s a guy who gets up every morning and does a little law.  

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Crucially, nobody who has been listening to Obama talk about his ideal jurist for the past eight years will be surprised to learn that caution, judicial restraint, and the ability to compromise are among Garland’s most prominent personal qualities. Those of us who are for less caution and more sharp elbows may have chosen, time and time again, to believe that Obama has been lying all these years about his distaste for liberal Scalias. But he wasn’t! And as someone who recently begged for a Justice Elizabeth Warren, I concede that Garland is precisely the kind of judge Obama most values—a “reasonable” one. That an organization like Fox News would criticize the president’s “reasonable” choice as a pretextual effort to look “reasonable” for political gain is about the best distillation of everything that is deranged about our current politics. Obama breaks liberal hearts by being moderate, then is accused of faux-moderation by the right.

Maya Angelou famously cautioned that “when someone shows you who they are believe them; the first time.” Obama with this pick shows us exactly who he is, as he has done time and again. And nobody should be all that surprised that he chose a nominee who has spent 19 years showing us exactly who he is either.  

When the best argument that Senate Judiciary Committee member Orrin Hatch, who in the past has expressly supported Garland for the Supreme Court, can come up with is that he is “a good man” who “shouldn’t be brought up in … the most toxic” election season of his 20 years in the Senate, well, the perfect Lewis Carroll inversion is complete.  “Stop being reasonable Mr. President, and stop giving us nominees we respect and have to beat to a pulp against our will” sounds less like responsible governance and more like the cri de coeur of a serial abuser. The GOP refusal to even meet with Garland, whom they all avowedly like, is like some weird form of abstinence education: If we meet him, we have to give him a hearing; if we give him a hearing, we have to vote; if we do that, we have to treat him like garbage. Next thing we know? Pregnant.

While it’s reasonable and fair to wish for a court comprised of a little less Harvard/Yale/Harvard/Yale cookie cutter–style justices, it’s hard not to admire Obama and Garland for the quiet confidence they still have in the dignity of the judicial project. It’s old-timey and maybe even pointless, but bracing in the current climate. And it’s critical to recognize all the important ways that approach is different from the bar fight our politics have become.  That bar fight, sadly, is what awaits Merrick Garland. He and Obama may be the last men in America who still believe that the courts can be better and do better than the politics of nihilism and doom.