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September 13, 2016
Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?
I am prompted to prompt the question in the title of this post after review of this interesting Washington Post article, headlined "Did Obama squander an opportunity by nominating Merrick Garland?". Here are a few notable excerpts from the lengthy piece:
No Democratic Senate candidates are talking about Garland in paid television ads. No one mentioned Garland during the Democratic National Convention in July, including Barack Obama.
Hillary Clinton has not committed to re-nominate Garland if she’s elected. While she talks about the Supreme Court, she almost never talks about him.
Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee — especially a minority candidate — to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps Clinton and the party would have more whole-heartedly embraced him or her....
The National Organization for Women signed onto an open letter urging Obama to appoint an African American woman to the court after Scalia died. When Garland was announced, the group expressed concern that he is “more or less a blank slate” on core women’s issues like reproductive rights.
NOW President Terry O'Neill wants the Senate to confirm Garland but she also thinks about how different the dynamic might be right now had the president gone with a more progressive black woman instead of a 63-year-old moderate white man. “I’m not going to say there wasn’t some disappointment,” she said in an interview last night. “I am very positive that the progressive community would be extremely active in promoting a more left-leaning appointment.”
O’Neill posited that an African American woman might have provided a clearer contrast. “Suppose he had nominated an African American woman,” she said. “No matter how moderate she might be, Republicans would say she’s way too out there and way too radical. The same way they talked about President Obama. … I don’t think you can eliminate race from understanding what these senators are doing. There’s no white president that’s ever been treated so disrespectfully.”
She lamented the paucity of media coverage about the vacancy. “Any African American woman who might have been nominated would have been viciously attacked,” O’Neill added. “It’s possible, if those vicious attacks would have happened, then the American public would have been much better informed of the outrageousness of what the Republicans are doing.”
Many of the same progressives who are not enthusiastic about Clinton are also not enthusiastic about Garland. Bernie Sanders said this spring as he campaigned for the Democratic nomination that he would ask Obama to withdraw Garland if he got elected so he could pick someone more liberal.
“We saw some of the highest grassroots energy in our eight year history in the run up to the president's Supreme Court nomination, and when the choice was Merrick Garland that energy completely plummeted,” said Adam Green, co-founder of the Progressive Change Campaign Committee.
Leaders in the African American community have called for a vote on Garland, but a lot of the key groups were also less than thrilled with his selection. Other liberal organizations like Democracy for America, which was founded by Howard Dean, said when Garland was nominated that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court.”
As readers may recall, the only woman of color who was seriously vetted for this open SCOTUS spot was US District Judge Ketanji Brown Jackson. I thought back in March and continue to think today that the politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick. In addition, as I highlighted in this post in February, GOP House Speaker Paul Ryan spoke in glowing terms abut Ketanji Brown Jackson at her confirmation hearing to become a US District Judge: as he put it, "she is clearly qualified. But it bears repeating just how qualified she is.... Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."
I think it quite likely that, had Prez Obama nominated Judge Brown Jackson, we would be seeing Democratic Senate candidates talking about her in TV ads. I am certain that a number of folks would have mentioned her during the Democratic National Convention in July, and I suspect Hillary Clinton would commit to re-nominate her if she’s elected. Speculating even further, I imagine lots of Democratic senators and House members would be pressing Speaker Ryan to voice support for giving Judge Brown Jackson at least a hearing. And, to really go for it, I could even imagine Colin Kaepernick saying, when asked when he will stand again for the National Anthem, that he will get off his knee if the US Senate moves forward on the SCOTUS nomination of Judge Brown Jackson.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?
- The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination
- After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
September 13, 2016 at 08:41 AM | Permalink
Comments
Multiple people, including leading Republican senators, said Judge Garland was a strong candidate for the Supreme Court specifically.
It's fatuous to cite support for a young judge's district court nominee. She was said to be qualified for a DISTRICT COURT slot & not even one where the vacancy (not that it is close to the same) arose in an election year (not that I buy into the hype there).
If she was chosen, the Republicans ON THE MERITS would have had a reason to oppose her (they would have said she was too young and inexperienced) along with the other stuff. I'm also sure they would find something like they did on Garland to upset them on the issues. The Democrats would have had a weaker case to complain that an obviously qualified [using current standards] compromise choice for Scalia's seat was not being acted on. Senators have been protesting, even if it wasn't brought up during the convention (in fact, the courts as a whole was not brought up that much there).
She would be said to be an obvious sacrifice lamb and even some who are Democrats would honestly (on or off the record) admit that realistically someone with more judicial experience or seen as a compromise choice would have to be chosen to realistically replace Scalia. Also, as the delays occurred, she wouldn't be able to do her job. Some voice on the left, particularly blacks (not a group with Trump's racism problem Clinton has a big problem with, beyond the fact they were a strong group supporting her and her husband for over twenty years) would have been more public.
That would be somewhat embarrassing but think the Republicans would survive it. Again, since they would now have something more on the merits to reject the nomination. Garland is an issue now too. It is evidence for the Dems that Republicans simply won't govern, even when a blatantly qualified (even leading Republicans said Obama should pick him for this very job) person is involved.
Racial politics is a way to go, I guess, but that also can be seen as "same old, same old," making her look more liberal - for a SCALIA seat -- than she really is. Again, aside from the left and outliers like yourself, this would hurt the overall case. Meanwhile, there is no reason she can't be chosen for a future vacancy, including RBG's, then having more experience in the courts.
Posted by: Joe | Sep 13, 2016 10:50:19 AM
Joe, I respect your analysis, but I respectfully disagree. The case "on the merits" against Judge Brown Jackson, at least if we are eager to focus on being "too young and inexperienced," pales in comparison to a comparable case that could (and in some sense was) made against Justices Thomas and Kagan. Justice Thomas had just turned 43 and had served as a judge for only 16 months when nominated to replace Justice Marshall; Judge Brown Jackson was 45 and had served as a judge for 3 years when Prez Obama picked Garland. If/when the GOP played the youth card, Ds would be quick to respond with the failure of the GOP to be concerned on this front 25 years ago.
As speaking in being inexperienced, Justice Kagan had no judicial experience and relatively little "real lawyering" experience when she was tapped for SCOTUS. In contrast, before becoming a District Judge, Judge Brown Jackson clerked for three judges, worked for two different private law firms, was an assistant federal PD, and was a vice-chair of the US Sentencing Commission.
All of these particulars aside, the real story is optics/politics and substance: as the WaPo piece highlights, nobody is really all that troubled by the optics/politics and substance of the GOP stalling/attacking the Garland nomination, in very large part because he is personally and professionally just another variation of the likes of Breyer, Alito, Kennedy and Roberts (i.e., a middle-aged, white-male with impressive credentials that include time a Govt-lawyer and as a circuit Judge). the optics/politics and substance of the GOP stalling/attacking of a Brown Jackson nomination would have been, in my view, radically different.
Posted by: Doug B. | Sep 13, 2016 11:59:52 AM
Nominating Garland was a brilliant choice and once again shows how Obama outplays everyone at the political game (and I say this as someone who has criticized him in the past for being a weak president.)
First, Garland was an amusing choice for a man like Obama because there is nothing more amusing than watching white men eat their own and the Republican party is largely white men.
Second, he was a smart choice because Republicans care more about SCOTUS nominees than Democrats. A black nominee would have pepped up the liberals, no dispute there, but it would have inflamed the Republicans far more. The dog whistles coming out of DC would have been heard around the world if a black woman had been nominated. So in my view Obama was smart to take that topic off the table.
Finally, Garland isn't a bad nominee for liberals just not the best one.
So where exactly is the downside? I don't see it.
Posted by: Daniel | Sep 13, 2016 2:11:01 PM
"the optics/politics and substance of the GOP stalling/attacking of a Brown Jackson nomination would have been, in my view, radically different."
There is no dispute there Doug. But that is not the question. The question is would the politics have been BETTER. For the reasons outlined above, I don't think so. You just want a lot of drama Doug but lots of drama is not always the best political choice.
Posted by: Daniel | Sep 13, 2016 2:14:11 PM
Daniel, you nailed the reality that I want a lot of drama (since it is good for the blog business), so my affinity for a woman of color nominee could be influenced by that self-serving reality. But on the topic of politics, it is quite obvious that the turn-out rate of young progressives (i.e., Bernie supporters), women and people of color this election cycle is going to determine who becomes the next Prez. The Garland pick provides no basis to get these voting blocks excited, and might even lead some (many?) to just stay home. A ground-breaking pick --- e.g., a young, Gen X, AA woman --- likely would prompt these groups to care much more about SCOTUS nominees than they now do, and this could have been the basis for all sort of useful campaign rhetoric for Obama's favorite team.
Among other things, had Judge Brown Jackson been the nominee, Hillary and the DNC and lots of civil rights/progressive groups would be saying loudly that young progressives, women and people of color need to vote and vote for Ds in key Senate races so those old white guys blocking this ground-breaking pick get sent packing. Among other things, had Judge Brown Jackson been the nominee, Hillary and the DNC and lots of civil rights/progressive groups could have made even more hay about Trump's untoward comments about the judge in the Trump U case and linked that perspective to the GOP blocking the nominee of a woman of color for SCOTUS. Among other things, had Judge Brown Jackson been the nominee, Hillary and the DNC and lots of civil rights/progressive groups could have publically and repeatedly call on the two most prominent GOP leaders now --- Paul Ryan and Donald Trump --- to urge the GOP Senate to at least have a hearing for the young, Gen X, AA woman rather than blocking her without even a hearing.
In the end, Obama and others could be playing the politics just right because maybe, as you speculate, the establishment and intellectual right would do even better "winning" the politics around Judge Brown Jackson. But from my perspective, the GOP has so far cleaned the clock on the White House and Ds surrounding the politics of Garland. And that they would struck me as entirely predictable before and after Obama made the Garland pick.
Posted by: Doug B. | Sep 13, 2016 2:43:43 PM
Justice Thomas, on the merits, was a weak choice. He barely passed thru (given the sexual harassment issue), partially helped by Democratic senators disinclined to vote against someone black. He was also (though this was denied) filling a "black seat" so his race helped there.
Nor, was he a swing justice. Here a Republican, more ideologically so, Congress is going to vote in someone who you in part are saying is in effect going to be a black power symbol? That's almost funny. And, youth isn't even the only thing at issue here. Finally, repeated analysis shows the "tradition" against nominating someone in an election year is fiction. The "no fair, he picked a young guy" thing isn't going to do it.
Kagan got nearly no Republican support. She was an outside the box nominee, still she was clearly qualified. The key was that the Dems controlled the Senate & she was able to go thru. The Republicans control the Senate now. The person is replacing Scalia, so they are going to compare him to their hero. It is not a question of her being not qualified in a vacuum. It's that now they have some cover & even by neutral rules (it's fine you don't like them & push back -- NOT THE POINT) Republicans have a reason to oppose her. Along with obviously the real reasons -- she is a left leaning and defense friendly Obama appointee who people who don't want to stand for the Pledge support.
Tossing out a sacrificial lamb that helps them in an area (support on the left, particularly blacks) Dems aren't exactly weak on, while giving Republican cover to oppose her on neutral grounds is not imho a better choice. Meanwhile, she can't be an active judge as these things are going on. Net value? Not much. It also weakens her somewhat as a choice (since she is seen as a failed choice) if Clinton wants to nominate her for a key appellate position or (why not) RBG's seat or something. Also, if she will hurt the Republicans by being the nominee now, they very well might have more negative feelings for her then. And, it's a longshot she would be confirmed now anyway.
Garland provides evidence Republicans can't be trusted to govern & might even influence one or two key Senate races where swing voters will be upset about that sort of thing. He is also on the merits a fine choice, one on Obama's short list and like Kagan, someone that can work the middle of the Court. He's a Clinton guy, so very well might have been endorsed by Hillary Clinton herself. And, nothing happens, he gets a hiatus and is good at going around promoting himself, looking reasonable while the Republicans look unreasonable (while opposing her would seem just like opposition on the merits). No real harm to the Democrats really -- honestly eight justices in the short term probably helped them some both in results and in making Republicans look bad -- and Garland still has his seat and a had a nice career so far.
I covered this "downside" before and maybe you disagree with some of it, but it's there. Bottom line, I think Obama likes Garland & after picking a career judge/Latina and a non-judge (both with useful qualities and skills), he wanted to pick Garland. He saw it as a reasonable option for Scalia. Plus, there were political values. You want some outside of the box deal, which is nice, but so it goes.
Posted by: Joe | Sep 13, 2016 3:13:12 PM
ETA: Grant that it's expected she won't be confirmed by the Republican Senate. Then, Clinton would re-nominate her & have to trust the Senate to confirm her. A Democratic Senate, especially before Trump, was no gimmee. Even now, it could be very close. She would be more of a battle, early in her term, when she has to deal with a lot of things & that could take a lot of energy. Clinton like Obama would play this safe, probably.
"nobody is really all that troubled by the optics/politics and substance of the GOP stalling/attacking the Garland nomination"
With Clinton and Trump as the nominees etc., attention is likely to be other things, but there are people upset about it. I have seen people "troubled" by it, but perhaps like myself, they don't count. There are a range of issues people are concerned about & even a sliver of concern in a swing state that changes ONE Senate race (not sure what state would change if she was nominated in this respect) could change the control of the Senate. And, who's to say it would be much different with her running? The change there seems to be, bluntly, she's black, and perhaps (though race would have much more effect), her criminal justice experience. But, this very well could backfire -- she will be seen to be a special interest, left leaning candidate. What this will value them net is unclear to me.
Posted by: Joe | Sep 13, 2016 3:27:09 PM
"But on the topic of politics, it is quite obvious that the turn-out rate of young progressives (i.e., Bernie supporters), women and people of color this election cycle is going to determine who becomes the next Prez."
How easily they forget. Back in February on this exact same topic you were insisting "soccer moms" were going to determine the next election.
"Hillary is struggling to secure the young liberal white female vote because she is from a different generation and she has serious credibility issues and the Clinton name. But those voters will not swing the general election, it will be the soccer moms."
From your comment in this thread:
http://sentencing.typepad.com/sentencing_law_and_policy/2016/02/prognosticating-scotus-possibilities-in-light-of-existing-politics.html
Posted by: Daniel | Sep 13, 2016 3:39:50 PM
I still think soccer moms will decide this election, Daniel, and I continue to also think "young liberal white female vote" will matter a lot less than the soccer moms. That all said, given Hillary's (surprising?) weakness as a candidate, and Trump's (surprising?) strength with working-class whites and the importance of working-class whites in a bunch of "now purple" states (e.g., PA, OH, WI, MI, FL, VA, NC, NV), I now have come to think that turn-out numbers --- rather than the voting preferences --- for young progressives (i.e., Bernie supporters), ALL women and people of color now looms especially large. (Notably, turn out numbers tend to be pretty consistent for the soccer moms, less so for younger voters and people of color.)
That all said, you raise an interesting point that makes me see a bit more to your's and Joe's more conservative political take on all this : though young progressives (i.e., Bernie supporters) and people of color might be much more excited by a pick other than Garland, Garland might well be a good political choice for the soccer moms of the world. So, put simply, good point taken.
Posted by: Doug B. | Sep 13, 2016 5:43:53 PM
Hey Joe and Daniel et al.: A new 538 analysis highlights how female voters (and arguably soccer moms in particular) will yet again determine our next Prez:
Election Update: Women Are Defeating Donald Trump
http://fivethirtyeight.com/features/election-update-women-are-defeating-donald-trump/
Posted by: Doug B. | Oct 12, 2016 7:33:24 AM
