Why Merrick Garland was a bad choice despite his merit.

Supreme Court Breakfast Table

OK, Merrick Garland Is an Amazingly Qualified, Brilliant Judge. He’s Still a Bad Choice.

Supreme Court Breakfast Table

OK, Merrick Garland Is an Amazingly Qualified, Brilliant Judge. He’s Still a Bad Choice.
An email conversation about the news of the day.
March 17 2016 5:45 PM

Supreme Court Breakfast Table

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Entry 6: OK, Garland is an amazingly qualified, brilliant judge. He’s still a bad choice.

Merrick Garland six.
President Obama announces his Supreme Court nominee, Merrick Garland (center), in the White House’s Rose Garden in Washington on Wednesday.

Photo illustration by Slate. Photo by Saul Loeb/Getty Images.

Dahlia, Akhil, Mike,

OK, OK, I’ll stand down: You’re all right, of course, that Merrick Garland is an amazingly qualified nominee who belongs on the Supreme Court. I’m sticking to my guns (my precious, imperiled guns) on the urgent need for diversity on the bench—and for more outsider voices throughout the judiciary. But Akhil, you’ve persuaded me that my complaints about Garland’s straight white male-ness are a bit off the mark. Sex, sexual orientation, and skin color don’t qualify you for a Supreme Court judgeship any more than they disqualify you; what matters is experience and intellect, both of which Garland boasts in spades. And given the current assault on the American ideal of equality from birth, perhaps I shouldn’t disregard the significance of his upbringing (middle class) or religion (Jewish). Garland may be mainstream by the judiciary’s standards, but his nomination is undoubtedly a rebuke to Trumpism.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

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But in terms of raw political calculus, I still think Garland’s nomination was a strategic error. Dahlia, you’re exactly right that Republicans’ canned, coordinated anti-Garland reaction looks childish, allowing Obama to be the grownup in the room once again. You ask whether that matters outside the Beltway and whether the resulting shame will push them toward compromise. I doubt it. The fact remains that Republicans were always going to stonewall Obama’s nominee, whether he or she was a moderate traditionalist or a firebrand liberal. Picking Garland won’t change that—although Garland, more than any other shortlist candidate, probably has the best chance at getting confirmed in the lame-duck session if Hillary Clinton wins the election. (Republicans may pretend that Garland is a raging liberal, but they surely know that he’s much more moderate than Clinton’s nominees would be.)

So Obama picked a doomed moderate-liberal instead of a doomed liberal-liberal and hopes that Republicans will embarrass themselves by hiding under their desks to avoid meeting Garland. Fine—but then what? Republicans have the votes to block him, and the majority of them are shameless about doing so. Mitch McConnell won’t even meet with the man, nonetheless give him hearings and a vote. I suppose Obama hopes those Republican senators locked in tight re-election races—Rob Portman and Kelly Ayotte, for example—are more likely to cave and support moderate Merrick than they would be if the nominee were a stronger progressive. But even on the miniscule chance that McConnell were to relent and allow a vote, the numbers still don’t work out; there’d be no way Obama could pick off enough senators to push Garland through, barring a major shift in the Republican strategy of maximal obstruction and bowing to their most conservative elements. Maybe Obama thinks Portman, Ayotte, et al will be damaged even more for opposing an eminently reasonable candidate. But I can’t imagine he based his decision entirely on a personal quest to knock down a few purple-state GOP senators.

All of which is to say: I still don’t understand why Obama wouldn’t have accomplished more politically by nominating a Sri Srinivasan or a Ketanji Brown Jackson. Even if they would have been doomed to be sacrificial lambs, their sacrifice would have been more valuable than Garland’s. Sure, they would make great justices, and I’d love to see them on the bench. But if either had been nominated and if Republicans had insisted upon their unfortunate path of obstruction, either would have made extraordinarily symbolic short-term martyrs—and both are young enough that a GOP rejection would not have to have killed their odds of a future elevation to the high court, maybe even under the next president.

I mean, if we’re going by electoral strategy, why not choose a nominee who truly excites the Democratic base and reflects its increasing diversity? If Obama’s first nominee was always going to be a piñata, weren’t there better piñatas on the shortlist? Had Republicans bashed and ignored Srinivasan or Jackson, they would have looked not just rude, but also xenophobic, sexist, or racist. (Srinivasan is an India-born Hindu; Jackson is a black woman.) In mistreating Garland, the GOP will appear infantile and obnoxious. But it won’t be re-enacting, in the public eye, the brazen delegitimization of a minority that has been central to its anti-Obama obstructionism from the start.

In short, I think Obama has once again overestimated the political costs for Republicans who refuse to compromise and underestimated their willingness to double down on a flawed strategy. Yes, people will get mad at Republicans for blocking Garland. Yes, vulnerable Republicans will make empty gestures toward cooperation. But at the end of the day, the obstruction will remain more or less absolute, and incentives for Democrats to get riled up about the nominee will remain relatively small. As Slate’s Jim Newell put it, Garland’s nomination “exists largely as a political lever against Republicans.” I don’t doubt that. I just wish Obama had picked a better lever.