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Obama’s Predictably Weak Pick

by Ken Arnold on Thu 17 March 2016

You would think after more than seven years of non-stop rejection and hostility from Republicans, Obama would have realized that his reasonableness and willingness to compromise are noble but pointless. I really thought he had finally learned the lesson. But he went back to old, weak form with his pick for the Supreme Court.

I have very little bad to say about Merrick Garland. He’s a moderately liberal judge, as far as I can read it. But I want have someone stronger and more helpful with the diversity of a terribly un-diverse Supreme Court. And I think Obama does too, yet feels this is his best play. He’s wrong on all counts.

If you follow this choice along all the likely results, it pretty much looses everywhere.

First, let’s look at what happens before the election. The best possible result is that the Senate, seeing that this is the best nominee they’re likely to get from any Democrat, and given all the grief about vowing to avoid hearings, changes course and confirms him. Nice thought, but that was gone in seconds. They instantly repledged to hold no hearings. Having done so, they really cannot change their minds without offending their base.

Ergo, it’s obstruction up through the election. This is their pledged course, and they will keep that pledge. And it was by far the most likely outcome.

So the only question remains: What price will they pay for it? The Republican base will be happy. The centrist-loving mainstream media will say some bad things, but the news will quickly fade as other new news comes along. A few Good-Government types will be pissed off, but there aren’t many people who would vote against their political beliefs to punish anyone for this.

The only possible price to be paid would have been invigorating Democratic voters. And this is not an invigorating nominee. Had he picked anyone who could be seen as being shafted because of their race, gender, religion, or nationality, that could energize people who care about that kind of discrimination. But Obama didn’t give us that kind of nominee. So no invigoration will happen.

To sum up: Having failed to produce an immediate change of tactics by the Republicans, this nomination will fade into obscurity and motivate no great payback.

That makes Garland a bad choice. And it was very predictable. There was, in fact, no reason to believe this nominee could have created any other outcome.

You may think we’re done here, but we most certainly are not. There are two more interesting periods of time after the election!

After the election, the existing Senate remains in power for almost two months. This is when the whole thing really gets bad. Because this nomination gives the Republicans options they’ll like.

If the Democrats win the Presidency, the existing Senate can use its last few weeks to confirm Garland. This prevents the next president from nominating someone more liberal and either getting them confirmed (if the Democrats take the next Senate) or at the very least providing a club with which to beat up the next Senate (if the Republicans do).

In other words, Garland then becomes a way to thwart the will of the next, winning Democratic president by ensuring that Scalia is at least replaced by about the best nominee for Republicans that a Democrat will make. Whether they do is entirely up to the existing Republican Senate.

But now, there is a final period of time that matters. For a few weeks in January, the new Senate will be seated under Obama, awaiting the new President’s inauguration. That Senate could also choose to confirm. If that new Senate is Democratic but the new President will be Republican, the Democrats can confirm Garland, which will be better than awaiting a Republican nominee. But they could do that for any Obama nominee, not just a moderate one. So the moderate nominee, once again, does not help make better things happen.

In sum, there are no circumstances in which Garland plays a positive role in making a better Supreme Court or helping the Democrats take the Senate or Presidency.

This is why it was a bad nomination. We don’t know for sure that a strong liberal candidate with an energizable constituency would make a difference, but it easily could. But we know that a dull nominee that won’t get confirmed unless that thwarts a more liberal nominee. And that makes it a bad move.

I have no idea what Obama thinks he’s accomplishing. Maybe there’s some clever agreement that involves Garland withdrawing at some critical point to allow Obama to nominate someone more useful to the election, having proved that the Republicans are outrageously unreasonable. That might work, but I don’t see anything in Garland’s past to indicate he’d be party to such a game.

I think it’s much more likely that Obama tried one (hopefully last) time to gather allies by being reasonable and responsible. Considering the inevitable response of the Republicans, this kind of “reasonable and responsible” play is unreasonable (history having proved it futile) and irresponsible (it gives up something valuable for nothing or worse than nothing).

I have a lot of respect for Obama. But I just wish he’d learn this lesson.

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