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By Tom Cushing

Nowhere to Hide

Uploaded: Mar 16, 2016


In his own words, by nominating Merrick Garland for the Supreme Court, President Obama has “played it straight.” So doing, he has also skillfully laid-down the winning hand he’s been dealt by the demise of Justice Scalia. As usual with his cerebral, far-sighted moves, this one takes some getting used-to.

So, how straight?

Garland is a consummate jurist with a well-defined track record – no games played there. Harvard-educated, he clerked on the Court, made partner early at a prestige law firm, and abandoned that lucrative path for a prosecutorial career. He’s been on the DC Circuit Court of Appeals for two decades, so his approach is well-known. He was elevated to Chief Judge of his court, an honor among peers on the bench. He is known to be tough on crime, and is not an 'activist' in terms of the judiciary’s role.

Like his nominor, Garland is a centrist, a consensus-builder and nobody’s drama king. He’s also displayed the so-called ‘empathy’ or life experience that the Prez has sought in prior appointments. Some attorneys view the law as a relatively passive, intellectual and philosophical exercise. By contrast, Judge Garland’s approach is demonstrated by his taking charge in the aftermath of the 1993 domestic terror bombing at Oklahoma City.

He arrived on-scene amid body bags while the ruins smoldered, took charge and assiduously ensured that the federal investigation left little to legally dispute. He appointed assistants to keep the victims’ families apprised. That level of professional thoroughness, and his focus on real-life consequences predict well for the quality of a justice attuned to a living Court, serving contemporary human needs.

In more merits-oriented times, Judge Garland was pushed-for as a nominee by influential GOP Senators, notably Utah’s Orrin Hatch, before the appointment went to others. In Garland's 1997 Appeals Court confirmation process, Iowa’s Senator Grassley, current Chair of the Judiciary Committee stated on the floor of the Senate: “I, like most of my colleagues, can find no fault with the person the President has put forward …”. Grassley did vote against confirmation, but only because he thought the Appeals Court already had too many judges.

Had Mr. Obama chosen Not to play it straight, he’d have put forward a clearer liberal, someone younger than 63, and a nominee who might have more obviously appealed to an important voting bloc – an Hispanic, an African American like CA’s own 9th Circuit Judge Paul Watford, or the Asian-heritage Mr. Srinivasan. He might have gone for Iowan Jane Kelly, whose nomination would have embarrassed the intransigence of Senator Grassley, currently engaged in a difficult re-election campaign. An older Jewish white-guy carries none of that automatic Democratic allure.

Finally, it’s straight because this is how the constitutional system really ought to work. With the Prez and the confirming Senate at odds, a compromise choice placed starkly between their preferences is exactly the kind of deal the Founders envisioned. It’s also what fully 2/3 of the electorate wants to see – and that was Before they had a name to assign to the vacancy. Would I, for one, prefer a more reliably liberal new guy or gal? You bet. But is compromise here a virtue in the long game – the flow of history and the public interest in a constitutional democracy? Absolutely.

Is there more to it? Yes, indeedy.

This was also a deft choice, politically. It lays barer-still the obvious GOP jihad of obstructing All Things Obama. It comes at a time when the approval standing of the Prez is ascending, as the electorate ponders the qualities of his would-be successors.

It’s also coincident with numerous uncertain re-election prospects for Republican Senators – notably Grassley, Ayotte (NH) and Flake (AZ) the latter two of whom are already signaling a break with their leadership over meetings with the nominee, which may lead to hearings, which might just provoke a vote. If the Primaries have told us anything, it is that status-quo loggerheads are unacceptable, and will be punished by an unhappy electorate. So Obama extends a proper consensus candidate; Mr. Garland will be ignored at the GOP’s real peril.

The timing is also canny, coming on the heels of further tribulations posed by the Trumpian insurgency, staying power of which was further demonstrated just last night. The odds of a Trump hostile takeover of the Party, or of a potent third-party bid if he loses, just get better all the time – meaning that the election of a Dem becomes more likely. That puts a different gloss on the delay option.

Had Mr. Obama picked a more liberal candidate, it would have given the GOP cover to play out the clock on his term. After all, a liberal appointed later by Hillary (perhaps with a Dem Senate) beats a liberal appointed now by Obama – they therefore would have nothing to lose and could claim that they’re saving the country in the interim. Garland, however, is measurably better than their specter of a bra-burning banshee in 2017. Perhaps they should cut a deal?

Thus, in the immortal words of the philosopher Martha Reeves, the GOP Senate has got nowhere to run to, baby. And per the Vandellas: nowhere to hide.

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