When Justice Ruth Bader Ginsburg is asked how many women would be “enough” on the Supreme Court, she always answers unequivocally: “Nine.” After all, there were nine men on the court for nearly 200 years. Now it’s the 21st century. Why not nine women?
Ginsburg’s quip reflects a deeper truth: Minority and female justices bring a perspective to the court that straight, white men simply do not have, perspectives that were discounted from this country’s greatest political and legal institutions for most of its existence. They sympathize with claims of liberty and equality that others disregard. And given our ever-evolving understanding of the Constitution’s most treasured guarantees, these perspectives provide a critical safeguard against the court dismissing, out of hand, the rights of America’s underprivileged people.
In that light, President Barack Obama’s nomination of Merrick Garland to the Supreme Court is extremely disappointing. Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, is about as mainstream as they come: a white, Harvard-educated Chicago boy who bounced between white-shoe firms and the Justice Department before President Bill Clinton placed him on the D.C. Circuit in 1997. Garland is the type of Washington elite who could’ve been placed on the court at almost any time over the past century. (There might have been some anti-Semitic blowback 100 years ago—Garland is Jewish—but today that’s a complete nonissue.)
Had Obama nominated a less historically conventional candidate, he could have simultaneously proved that he understands the necessity of empathetic, unorthodox voices on the bench—while also giving the Democratic base a new kind of champion to rally around. No black woman has ever served on the high court; a different pick from Obama’s shortlist, U.S. District Judge Ketanji Brown Jackson, could have changed that. We’ve never seen an Indian or a Hindu on the bench; Sri Srinivasan, Garland’s brilliant colleague on the D.C. Circuit, could have blazed that trail. Instead, Obama is asking Americans to cheer for yet another white guy.
There are three ways to view Obama’s decision. First, Garland could be a sacrificial lamb, set up to absorb Republicans’ worst blows then bow out, clearing the way for Srinivasan. Second, he could be a concession to the political realities of the moment, where racism and nativism have surprising political purchase. Third, he might just be the most moderate nominee in the bullpen, a judge whom liberals could learn to live with and Republicans could hesitantly assent to. That seemed to be the most likely possibility on Wednesday, when Obama ran through Republicans’ past praise of his new nominee during his Rose Garden announcement of the pick.
And make no mistake: Garland is a centrist. SCOTUSblog’s Tom Goldstein describes him as “the model, neutral judge. … His opinions avoid unnecessary, sweeping pronouncements.” During his confirmation hearings, Sen. Orrin Hatch—the longest serving Republican on the Senate Judiciary Committee—called him “not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration.” In 2010, he said that Garland “would be very well supported by all sides” as a Supreme Court nominee.
Garland carefully follows precedent, even when it leads him to conclusions that his judicial ideology might not otherwise support. In 2003, he agreed that Guantánamo Bay detainees could not seek relief in civilian courts in an opinion that cleaved closely to existing case law. (The Supreme Court overturned the ruling.) He has a law-and-order streak, consistently rejecting appeals by criminal defendants, and seems to place great trust in the government’s ability to prosecute fairly. (Garland helped to prosecute the Oklahoma City bombing and the Unabomber.) He favors deference toward federal agencies’ interpretation of statutes, especially in the realm of environmental regulation. (That’s a definite perk for liberals.) He takes a fairly broad view of the First Amendment without swinging toward free speech absolutism and typically sides with transparency over the government’s efforts to maintain internal secrecy. And he is quite skeptical of attempts to assert new constitutional rights: Garland rejected an effort to establish a right for dying patients to access unapproved drugs and for juveniles to be free from restrictive curfews.
All of which is to say that conservatives will have a very hard time finding fault with Chief Judge Garland. (They might dwell on his willingness to question the scope of the Second Amendment, but that occurred before the Supreme Court reinterpreted it to allow individual gun ownership.) And liberals won’t find much to complain about jurisprudentially; he won’t be a William Brennan (the firebrand liberal justice for whom Garland clerked), but neither will he be a Byron White (the Kennedy appointee who drifted rightward). It is hard to imagine Garland overturning major precedent, liberal or conservative. It’s equally difficult to believe that he would push constitutional liberty in bold new directions. He is, for better or for worse, a man in the middle.
I’d love for my fellow Breakfast Tablers to talk me out of my pessimism. What am I missing? Does my disappointment hinge too grossly on identity politics? I understand that Garland may have the best chance of being confirmed as anybody on the shortlist. But I can’t help but recall the excitement when Obama nominated Sonia Sotomayor to the court—a truly courageous outsider judge who has already made her unique and important views on civil rights felt on the bench. I guess I set myself up for dismay. I was hoping for another Sotomayor, a judge who would reflect America’s diversity and generously interpret its most cherished liberties. Instead, we got a traditional moderate whose most important qualification seems to be his ability to woo Orrin Hatch.