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March 21, 2016

Rounding up commentary highlighting why I am just not that into SCOTUS nomination of Chief Judge Merrick Garland

32249482_400x400In this initial post about Prez Obama's selection of Chief DC Circuit Judge Merrick Garland as his latest and likely last SCOTUS nominee, I expressed some reasons I was initially disappointed by the selection.  Since that time, I have read a little bit of the copious commentary about Chief Judge Garland and much of it suggests Judge Garland is a first-rate jurist who would make a perfectly fine Justice.

But I remain troubled that Prez Obama, after he has talked and talked and talked about the importance of criminal justice reform and of "life experience earned outside the classroom and the courtroom," decided to nominate to the Supreme Court yet another former federal prosecutor and long-time DC Circuit judge who seems to have garnered nearly all of his professional experiences inside the classroom and the courtroom.  Of particular concern for me, I suppose, is that Chief Judge Garland's professional experiences have come from inside all the same classrooms and courtrooms in which all the other Justices learned.

Because I am generally assuming GOP Senate leaders will be keeping their oft-stated promise not to even hold a hearing to consider Chief Judge Garland,  I do not plan to blog much about his nomination in the weeks ahead.  But, having seen already a bunch of old and new commentary that captures some of my thoughts about the nomination, I thought it useful here to do a mini-round up:

From Bloomberg View here, "Obama Picked a Stellar Judge. He Could Have Done Better."

From Salon here, "Inside Merrick Garland’s troubling record: Why he could take the Supreme Court right in one very important regard; No one is saying that Merrick Garland is a conservative, but his stance on criminal justice is cause for concern"

From Vox here, "Is Merrick Garland more conservative than Antonin Scalia on criminal justice issues?" 

From Grits for Breakfast here, "In praise of do-nothing Republicans on SCOTUS nominee"

The first of these linked pieces, authored by Noah Feldman, astutely comments on the symbolism of the nomination of Chief Judge Garland that has me most put off:

[E]ven if Garland is blocked, there’s a symbolic message in his nomination.  That message is that diversity isn’t very important on the Supreme Court, and that what matters is a career of legal excellence from which one emerges unscathed by the taint of controversy, risk, or (God forbid) strong opinion strongly expressed.

That hasn’t always been the case. The Supreme Court was one of the first institutions in American life where it was widely agreed that diversity counted — and that included diversity of background, experience, and viewpoint. Nearly a century ago, people were already speaking of the court as having a Western seat, a Catholic seat, a Jewish seat, and a scholar’s seat — evidence for the time of a fairly broad spectrum of desirable representation.

Franklin Delano Roosevelt’s justices came from the Senate, the Securities and Exchange Commission, governorships, private practice, and the academy.  They had staked out controversial, risky positions on the most important issues of the day.  William O. Douglas had crusaded against the New York Stock Exchange.  Hugo Black was considered the most radical Senator.  Think Elizabeth Warren, not Merrick Garland.

To his credit, Obama has aimed at diversity in picking two women, one of them Latina.  Their professional experiences weren’t all that varied from the other justices, but that was fine, considering their other virtues.

But was it really necessary for the president to go so far as to nominate possibly the safest candidate in the entire U.S. judiciary?  I like and respect Garland, and I’m sure he’d make an excellent justice.  He embodies many of the legal virtues that I try to teach.  Yet the basis for his selection depends on his plain-vanilla career.  It manifests the extreme care that he’s exercised in a long and distinguished professional path....

The contrast with Antonin Scalia, whom Garland would replace, is striking.  Scalia, who died in February, was also a white, male, Harvard Law graduate who’d worked in the Department of Justice.  But as a law professor, he’d staked out strong opinions and earned a reputation as a conservative intellectual leader.

It’s old news that Robert Bork’s confirmation process changed the rules of the game, driving presidents of both parties to stealth nominees.  But it’s still worth noting that Garland’s nomination is the new high water-mark of non-controversial court appointments.

This time, a fight was inevitable.  Obama could’ve used the chance for a nomination that would make the fight interesting.  He didn’t.  That may be a testament to his shrewd political mind, but it's still cause for reflection and regret.

March 21, 2016 at 09:41 AM | Permalink


What if he had nominated himself ☺ ?

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Oregon ‼ | Mar 21, 2016 10:47:49 AM

The NYT ranked the justices on an ideological level and put him to the left of Breyer and about the same as Kagan.

I realize your concerns lean in a certain direction, but him being "more conservative" than Scalia on one issue doesn't seal the deal for me. Also as Orin Kerr noted (Chart 1) "If you think Scalia was a good draw for criminal defendants, study this chart: https://t.co/w9OTGnh0QE The leading option were two prosecutors. Your choice was not going to happen. Jane Kelly? You yourself, who was pushing for a defense minded jurist, said she had issues. You were set up for disappointment.

Obama already had two fights. His picks expanded diversity. THIS one promoted the idea of reasonable government and we are supposed to be upset a very qualified person was nominated after diversity and thinking outside of the box (a non-judge) was already tried. For SCALIA. Yet again it's people saying he didn't do enough. Gave you some cake. But it only has two layers. Wah!

Posted by: Joe | Mar 21, 2016 11:09:00 AM

A three word description of why the current eight justices are lame is "inside the beltway". To begin with five of them are from New York, Jersey or Connecticut and speak that "turdy turd and a turd" accent. Then, two from CA and one from Pin Point, GA. All are from Harvard and Yale. None have ever, ever, defended a human in a felony jury trial. One has tried cases in a trial level. All worked for other judges or justices. Almost all were on the DC Circuit Court of Appeals.

None think in a broad manner like Hugo Black or Earl Warren.

Obama should have named that 8th Circuit Judge who used to be a federal public defender.

Posted by: Liberty1st | Mar 21, 2016 11:10:03 AM

Prof. Berman said he was concerned about Jane Kelly because she had such a limited background. A politician provides insight about many things -- so Black (who served as a local judge too) or Warren (also a prosecutor) had wide experience over a range of subjects. Kelly is getting that now as an appellate judge.

The thought is that the nominee here is doomed. So, if Jane Kelly is a good choice, why not wait (unless one thinks Trump or Cruz will win), since she is still young, and she can be chosen not merely to make a point but when she has a good chance of being confirmed. Heck, if Garland is blocked, Clinton can STILL nominate her!

It's great to be concerned about lack of diversity, but the other realistic options were all of the usual sort, including the two top back-ups. One was black, and that helps diversity some, but not in the way being made in the comment. And, a choice simply on the merits, not to promote diversity, not to promote an ideological brand, etc. is different too. I give you Prof. Amar and Dahlia Lithwick over at Slate.

Posted by: Joe | Mar 21, 2016 11:21:28 AM

I want someone from the West or Midwest. Not Harvard or Yale. Perhaps Univ of Chicago Law School. Criminal defense lawyer and civil rights lawyer with federal court experience. Someone with book learning. NOT an appellate judge. A Supreme Court Justice does not need appellate court experience as a judge. As a lawyer yeah. NOT a died in the wool former federal U.S. Attorney or Dept of Justice dork.

Posted by: Harry Rectum | Mar 21, 2016 1:13:16 PM

that weeping, uxorious acknowledgement said one thing to this listener: he needs some stones.
He is no Scalia surrogate.

Posted by: FluffyRoss | Mar 21, 2016 1:46:11 PM

Joe, I was really set up for disappointment once it was clear the short list was only likely to include federal circuit judges and perhaps on district judge. I did not make a big deal over it this I liked a couple of the short-listers, but the limited array of names that even made the short list was a sad testament to a failure of vision for this pick (especially in light of the seeming inevitability of GOP resistance).

Especially if Prez Obama was willing to pick someone older like Garland, how about someone like, say, Leah Ward Seals, former Chief Judge of the Georgia Supreme Court or Laura Denvir Stith current member of Supreme Court of Missouri (and its former Chief) OR someone else with a career nostly spent outside the federal judicary. Notably Justices Sandra Day O'Connor, William Brennan, Benjamin Cardozo and Oliver Wendell Holmes all came to SCOTUS from state courts and Justices John Marshall, Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, William O. Douglas, Robert Jackson, and Earl Warren all came to SCOTUS without prior judicial experience.

I am certain there are hundreds of "realistic" possibilities even more dynamic and interesting than anyone on the short-lists that made the rounds. In some sense, everyone on the short list was, to use Feldman's terms, notable for ther "plain-vanilla career." Because that career included work as a defense attorney for a few of the short listers, I did not replay some of my prior criticisms of the myopic inside-the-Beltway attitude/perspective that now seems to dominate this discussion. But the Garland pick got my goat this way.

Posted by: Doug B. | Mar 21, 2016 5:28:28 PM

Going forward, I would hope Justices would have real life experiences as well as a few dozen trial cases. We dont need federal judges or Ausa experience only. If they have it its great background. It will be intersting to see how this plays out.

Posted by: MidWestGuy | Mar 21, 2016 10:41:07 PM

Doesn't your point presuppose that the nominee would ever get a vote? One theory is that Garland agreed to be the reasonable-looking sacrificial lamb, who could make the Republicans look silly by refusing to even consider him. Then, once Hillary wins, he'll announce that, upon further reflection, he'd like to spend more time with his family and he is withdrawing his name from consideration. Then Hillary names a more left-leaning justice and dares the Senate to again not hold hearings or a vote. The real questions are (1) whether the Senate flips from R to D with Trump on top of the R ticket and, if not (2) how long a Republican Senate can refuse to seat a USSC justice. 5 years? What if Hillary's re-elected? 8 years?

So I understand your point, but it is more or less built on the false assumption that Garland ever had a realistic shot at being confirmed.

Posted by: vachesacree | Mar 22, 2016 5:09:58 PM

I think you have the political game-plan mostly right, vachesacree, but the way in which this political game is being played still is disappointing.

Posted by: Doug B. | Mar 23, 2016 8:08:20 AM

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