On Wednesday, President Obama nominated Merrick Garland to the Supreme Court. Garland is currently the Chief Judge of the D.C. Circuit Court, and is relatively moderate compared to other potential nominees. At 63, he's also quite old for a new justice.
It's a characteristic move from the president, who has a long history of pre-compromising in an attempt to win Republican support. He did it with ObamaCare, he did it with the Recovery Act, and he did it during the attempted "grand bargain" negotiations.
The response from Republicans was also characteristic, as Senate Majority Leader Mitch McConnell immediately ruled out any vote on the nomination. But he may well change his mind. Liberals may come to regret this decision from the president.
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The basic logic in congressional Republican minds is probably something like the following: Anyone nominated by President Obama, regardless of identity, is immediately demon spawn in the minds of conservative base voters. This crowd also has about the same view of tactical positioning as a spoiled, hungry 2-year-old standing in front of candy in the grocery store checkout line, and so the argument to confirm Garland as the least-bad option is likely to be discounted in favor of a prolonged shriek of mindless rage.
To be fair, they've been constantly egged on in this development by most conservative elites, particularly Ted Cruz, who is now the only remotely credible challenger to Donald Trump to win the Republican nomination for president. That means that any initial attempt to get Garland through would surely spark white-hot fury among the base.
However, the Republican leadership is not completely deranged, and Speaker of the House Paul Ryan and especially McConnell are some of the cannier party strategists. The rise of Trump, and the ensuing chaotic scramble among Republicans, has notably softened the frenzied pressure against the GOP leadership, thus mostly saving Ryan from the repeated crises that confronted his predecessor John Boehner. Hence, they might conclude sneaking Garland through when everyone's back is turned might be a good idea.
Plus, on the merits Garland is actually a pretty reasonable win for conservatives. First, he's old, and future President Hillary Clinton would undoubtedly nominate someone much younger. Given Trump's abysmal polling numbers, Clinton might well win in a gigantic landslide, thus giving Democrats control of the Senate, when they'd be only a filibuster reform away from being able to push through whoever they want.
And while Garland is your basic Democrat on many issues, on one important one he's quite conservative — namely, criminal justice. Like most former prosecutors he's extremely unsympathetic to criminal defendants, almost never supporting their appeals. Obama himself even boasted about Garland not letting people off "on a technicality." (So much for due process!) And on everything else, he's certainly to the right of Justice Sonia Sotomayor.
So I see two points at which congressional Republicans might decide to rush Garland through. First, once Trump secures the nomination. At that point Garland would probably be considered superior by movement conservatives than whoever Trump would nominate (Ivanka Trump?), and so will be a decent stopgap. Second, if Clinton wins the election. Then he would obviously be the only partial win on the table.
At that point the only option to forestall Garland's ascension to the Supreme Court would be to withdraw his nomination before Republicans can confirm him. I am virtually certain that Obama would not do this. Bipartisanship is something of an idée fixe with the president. He has long had his hand stretched out across the aisle despite being repeatedly tased for his trouble. A bipartisan bargain to put someone on the Supreme Court would give him that Eisenhower glow he's been jonesing for over the last seven years. (It would also be a grievous insult to Garland himself, who probably went through vetting hell to get here, and openly wept during his speech accepting the nomination.)
Scalia's death provided an opening to decisively shift the Supreme Court to the left for the next generation. If Republicans have any sense, it will be more toward the center for half that time.
