Rule of Law

Obama Plays Chicken with Merrick Garland Supreme Court Nomination

President Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia on the Supreme Court means the White House has decided to play chicken with Senate Republicans. It means President Obama believes Garland can be packaged as a reasonable moderate to force Senate Republicans to go wobbly.

It also means that President Obama is playing the long game, instead of short-term electoral politics.

Picking Garland instead of more progressive alternatives shows Obama is sacrificing any turbocharging effect on the Democrat base in the fall in exchange for, what he must believe, is a chance to make Senate Republicans buckle.

But this time, Obama may have miscalculated the political atmosphere in the Republican Party.

Those I have spoken to who are very close to the thinking of Senate leaders consider it a lead-pipe lock that there will be no hearings for Garland, and there will be no vote.

It’s easy to say you’ve seen this movie before, and that the Senate GOP will eventually swap deals here, there, and eventually everywhere in exchange for a hearing or vote on Garland. But those close to Senate leaders have assured grassroots leaders that the Senate GOP has never been more solid and committed to a position in several decades as they are to denying hearings and a vote to Garland.

At the same time, Garland is a pick designed to probe and test that commitment.

Obama probably heard Senator Orrin Hatch when just last week he called Garland a “fine man”; he badly miscalculated that Obama would pick a radical.

Garland once voted to deny habeas corpus rights to Gitmo detainees, a position eventually reversed by the Supreme Court in Rasul v. Bush. But don’t be fooled by his position in Rasul, as it was squarely consistent with Supreme Court precedent at the time. He was bound to follow decades-old Supreme Court precedent until the Supreme Court transformed the law, which it did a year later.

Judge Garland

Judge Garland

By now, Senator Hatch must realize that plenty of “fine” men have made a fine mess out of the country. At best, Garland would be a center-left vote to replace Scalia, and that’s good enough to transform the Court and then the nation.

Don’t be deceived. Garland may have rendered some unsurprisingly moderate opinions on criminal justice or Gitmo, but once on the Court he’ll provide the final vote to preserve big government in areas such as deference to federal agencies and federal health care control. He will be a reliable fifth vote on transformational social issues, and he has already displayed hostility to Second Amendment rights.

Obama could have appointed a progressive radical or someone who would energize racial voting blocs this fall. Instead, Obama has started a game of chicken. He thinks Republicans will flinch first.  This time, Obama has misread them.

Senate Republicans have vowed that the next president must replace Scalia, not President Obama.  Recognition of the transformative damage that Obama has done to the rule of law may have come late to the Senate GOP, but at least it has come. Senate leaders have vowed to hold no hearings on Garland and have no votes, and for this decision, everyone who supports the Constitution and the limits on government should applaud them.