Understanding there would be only a negligible chance of getting his SCOTUS nominee confirmed, President Obama did the smart thing nominated a candidate that the media and Democrats could incessantly describe as “centrist” or “moderate.” Now, I’ll leave specific characterizations about Merrick Garland’s legal temperament to the experts—though even the New York Times places him to the left of Kagan and Breyer—whether he’s a centrist or a hardcore progressive doesn’t matter one bit.
But if his “centrism” is important, then it’s also fair to point that the likelihood of Garland siding with conservatives on preserving the individual right of gun ownership in Heller or free expression in Citizens United, or any other case with implications the average conservative might care about, is zero.
SCOTUS judges can’t make “moderate” decisions, they can only pick a side.
This is why the preemptive position of rejecting all nominees was important. There is no need for interviews and no need for hearings. Republicans have no constitutional duty to accept Obama’s nominee. The GOP beef should be with Obama’s transformation of American governance. Garland might have a wonderful personal story, but Obama, who has spent the majority of his presidency arguing against checks and balances, shouldn’t be allowed to create a post-constitutional court in his last year that would displace law for empathy.
Though the Republicans’ claim that the “people” should decide the nominee is kind of a silly formulation, whatever repercussions there might be for this supposed obstructionism—and I’ll continue to point out that every time the GOP is warned about its imminent demise because of these stands it wins a wave election—none could be as destructive as conceding the Supreme Court to Obama in the months before November 2016.
Republicans are told that if they accept a moderate today they can avoid a bogeyman (bogeyperson?) in the future. After the election, Clinton will nominate the craziest most-progressive judge ever, and you’ll be sorry! (So you mean to tell me that Hillary isn’t going to be a conciliatory president and try and bring America together?) Whoever that judge is will do exactly what Garland would do: vote with the progressive wing on most issues.
If Clinton wins in the general election, the GOP might move in December to confirm Garland, hoping to snag the marginally less destructive nominee. If that happens, Greg Sargent at the Washington Post lays out this possibility:
That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.
Not only would Obama have every right to this, he would simply be pilfering the Republican position about the electorate having a say in the process.
But so what? With Donald Trump leading the GOP pack—and the prospects of him being able to win in the general, much less name constitutionalists to the court, are exceedingly low—all this might be a moot point soon enough. But with a Democratic Party frontrunner facing accusations of wrongdoing and impressive unfavorability ratings, the GOP has no reason to jump the gun. It’s been a crazy year, and a lot can happen. And if the worst case scenario unfolds for movement conservatives, they lose nothing.
I mean, they lose everything, but preemptively giving it all away makes no sense.