By all accounts, Judge Merrick Garland is an outstanding individual and a dedicated public servant. In the early 1990s, when he was in his early forties, he abandoned a career in one of Washington's leading law firms to become a federal prosecutor, and he handled the case of what was then the worst terrorist attack in US history, the Oklahoma City bombing. His selection by President Obama will be one of the last milestones of the Obama presidency, and if a Democrat wins the election in November, it seems very likely that Garland will be promptly confirmed and become part of the Obama legacy. yet for all that, both Garland's selection, and the controversy surrounding it, once again illustrate what is wrong with our nation today, why liberalism is losing key battles in the struggle to remake America, and why Barack Obama, to put it bluntly, was simply President at the wrong time. It confirms yet again that while Republicans are fighting to transform America, the Democratic leadership is fighting to maintain a very shaky status quo.
Supreme Court appointments have illustrated the contrast between the two parties for several decades. In the 1950s, under the leadership of Earl Warren, a progressive Republican, the Supreme Court emerged as a powerful force for social and political change. It ordered the desegregation of schools, eliminated school prayer, and decreed the redistricting of state legislatures to end favoritism towards rural areas. In the 1970s it legalized abortion, and more recently it has legalized gay sex and gay marriage. By the 1980s, conservative Republicans were engaged in a campaign to use court appointments to undo some of those changes and use the court to move the nation in their preferred direction on many issues. Their campaign moved slowly at first. President Reagan began his term by appointing Sandra Day O'Connor, a moderate, but he later added Antonin Scalia and tried to add Robert Bork. George H. W. Bush plucked David Souter from obscurity, and Souter emerged as another moderate, but he also appointed Clarence Thomas when Thomas was only 44 years old. By the time of the George W. Bush Administration the Republicans were taking no chances. John Roberts and Samuel Alito were both relatively young, impeccably conservative, and nurtured within the new conservative legal establishment that the Republicans had managed to create. Together with Thomas and Scalia, that four reliable, hard right justices, and with the help of Anthony Kennedy, they established a new individual right to own guns and ended limits on campaign spending.
Bill Clinton and Barack Obama have appointed reliable liberals, but their appointments have differed from the conservative Republican ones in key respects. Of their four choices--Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor--only Ginsburg, who had a long background as a woman's rights activist, could be said to come out of an ideological network parallel to the one that spawned the four conservative justices. That is partly because there is no such broad network abroad in the land--there is no broad liberal judicial creed out there any more, and the academic left in law schools is dominated by critical legal theory, which focuses on race and gender. In contrast to Scalia and Thomas, whose "originalism" has defined them as justices, none of these four has enunciated any particularly liberal legal doctrine in their time on the court. And last, but hardly least, the Democratic selections have been significantly older than the Republican ones. The four conservatives averaged 50 years old at the time of their appointment; the liberals averaged 55. That means the conservatives, all things being equal, will serve a total of 20 years longer than the liberals. To paraphrase the last great work by my friend the political scientist James MacGregor Burns, the Republicans have worked much harder and more systematically to pack the court.
Now from the moment that Barack Obama took office, Congressional Republicans have attempted not only to discredit and cripple his presidency, but to continue the Republican assault on the institutions we created from the 1930s through the 1960s. After their conquest of the House of Representatives in the 2010 elections, they effectively blocked any new liberal measures and carried on a long-term and successful campaign to cut discretionary federal spending. They did not filibuster the Sotomayor and Kagan appointments, which were made when the Democrats still had a significant Senate majority, but elements of their base were outraged by the gay marriage decision. Whatever the precedents election year appointments--and there are many--they were bound to use their new Senate majority to refuse to consider an Obama appointment during the last year of his Presidency. I am bemused by my fellow Democrats' complaints that the Republicans simply should not be allowed to get away with this. What the Republicans are doing simply reflects a basic fact of political life during our fourth great crisis: they live in an alternative universe and want to create a completely different United States. They will not allow any feelings of common ground across the political aisle to get in the way. Nor, in my opinion, is there any substantial body of swing voters abroad in the land who will punish Republican Senators at the polls this fall for refusing to consider a nomination. The bulk of the American people will not care.
Among the various names who were mentioned as possible Obama nominations for this new vacancy, the one that caught my eye was Judge Jane Kelly, an appeals court judge. Judge Kelly has ever run for office--a gap in her resume which she shares with every Supreme Court appointment since Sandra Day O'Connor--but she spent much of her career advocating for the rights of the less well off. While Hillary Clinton in the Children's Defense Fund and Barack Obama as a community organizer each spent about two years padding their resume with social work, Judge Kelly is the real deal: she was a public defender for almost twenty years. She would have brought a new perspective to the court, and at age 52, she would have been relatively young for a Democratic appointee, if not a Republican one. Her choice would also have put great pressure on Senator Charles Grassley, the Republican chairman of the Judiciary Committee, because she is from his own state of Iowa. But the President decided against her--some say because the White House feared attack ads describing some of her clients.
Merrick Garland, on the other hand, will turn 64 this year, making him the oldest appointee to the court in many years. And while he has a calm and even temperament and has evidently been a wonderful colleague on the D.C. Court of Appeals, he is not particularly liberal. While he raised questions about the decision to strike down the District of Columbia's gun laws, he also tried to deny judicial review to the prisoners at Guantanamo. He has not been particularly favorable to the rights of defendants (which ironically, to a liberal like myself, was the strongest part of Justice Scalia's record.) Interested readers can find a well-informed survey of his positions here. He is the kind of justice who would do well in a consensus era like the 1950s--just as Barack Obama might have done well as President in a consensus era like the 1950s. Barack Obama thought from the moment he was inaugurated that he might bring our partisan civil war to an end, and he has never given up that hope. As a result, his side in our ongoing civil war--the struggle that will redefine America--has been without an effective leader, and the other side has continued to gain ground.
In the 24 hours since Garland's nomination, a likely scenario has emerged. The Republicans will not now hold hearings on his nomination--but if a Democrat is elected in November it seems that Garland will probably be confirmed. He will be older and less liberal than anyone that Hillary Clinton, much less Bernie Sanders (whose chances are of course fading), would be likely to appoint. He will become part of Barack Obama's legacy--a legacy of trying to be more inclusive towards minorities while accepting the economic and political changes that have swept over the US since the 1980s. That, as I suggested last December, seems to be the direction in which the country is moving, although we certainly have not gotten into that relatively safe harbor yet.