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.
Garland’s resume reads like … well, like David Souter’s. He graduated from Harvard, then Harvard Law School, clerked for Justice William Brennan, and had a distinguished career in the Justice Department. He prosecuted the Oklahoma City bomber, Timothy McVeigh, and the Unabomber, Ted Kaczynski, in the mid-1990s. He is also two years older than the current chief justice, John Roberts.
President Barack Obama had the chance to name Sri Srinivasan—14 years Garland’s junior—to the lifetime appointment, or another younger person of color, or a third (also younger) woman on the bench. That would have been an ideal response to the rise of Donald Trump, the man who is running away with the Republican presidential nomination on the promise to “Make America Great Again” by expelling immigrants and banning Muslims. It’s true that, in a single deft move, such a pick would have shown that America is already great. But the decision to tap Garland highlights Obama’s pragmatism and perhaps his optimism. He must believe that, faced with an undeniably centrist nominee, Republicans in the Senate will be forced to defend a decision not to even meet with a man they have nearly unanimously praised. Maybe he thinks they’ll even relent.
It’s also true that nobody will be out in the streets protesting in support of a 63-year-old white man; not as they might have done for the first Hindu Justice, or the first black woman to serve on the high court. But Obama may have spared any potentially groundbreaking justice from being treated, in Senate Judiciary Committee member John Cornyn’s words, as “a piñata.” Instead, he may have sacrificed a player with a long and distinguished career, to save a future America that really can be greater than it is at the moment.
It’s on the rest of us, now, to remind Republicans in the Senate that we can stand on the streets and holler for a man who has given decades of distinguished service, and been a thoughtful liberal, even as he is 63, and white, and looks like a grandpa. The Supreme Court is, after all, America’s last bastion of sober reflection. The Constitution is still our national sacred text. Obama chose the least symbolic, least ground-shaking nominee in the stables because he has the chance to shift the direction of the court for years to come—if he can only get someone through. We should realize that it was never going to be up to Obama’s nominee to be the symbol of tolerance, pluralism, ethnicity, gender, or identity. But the court itself must stand as a symbol of something still sacred in an America where political currents seem to have made it so that nothing is sacred—where naked partisanship and obstruction might count for more than constitutional responsibilities. We should fight for Garland because he is—I suspect—most symbolic for not being a symbol at all.