“What is your name?”
“What year is it?”
“Who’s the President of the United States.”
As a coquettish grin swept across her cheeks, she scrunched up her shoulders bashfully and said wistfully, “Bill Clinton.”
Yeah, we wanted dementia that day. We all did.
But back to Garland. Senator Mitch McConnell has made it abundantly clear since Justice Scalia’s death that he intends for the next president to choose Scalia’s successor, despite the fact that Obama’s term in office does not end in January and a number of pending cases will be impacted markedly by the absence of a pivotal justice, leaving many decisions likely to fall 4-4. To have such a long vacancy would be unprecedented. While it is true that the last person to be nominated and confirmed during a presidential election year was Benjamin Cardozo in 1932, so 84 years ago, the longest wait for a nominee, from the time of nomination to the time that there was a Senate vote was 125 for Louis Brandeis in 1916. Thus, to fail to confirm Scalia’s replacement would set a major precedent. And while there was little doubt that President Obama would nominate someone to the bench, it came to some (myself included) as a surprise who that nominee ultimately was.
Srinivasan was in many ways the perfect candidate. Young, check, Minority, check. DC Circuit Court of Appeals, check. Experienced in other capacities, check. Clerked for a Republican-appointed justice and thus able to potentially garner GOP support in the Senate, check. Unanimously confirmed, check.
Now, Srinivasan would not have been the dream justice for a liberal Democrat hoping for a game-changer, but that was never in the cards given the current partisan climate. We are in a “move the median” game, not a “change the game” setting, and either way, regardless of Obama’s nominee, the Democrats can only win with an Obama appointee given that they are replacing a staunch conservative justice. So in a sense, feather ruffling isn’t so much called for except with respect to the issue of obstruction for the sake of obstruction.
Which brings us to Merrick Garland, Chief Judge of the DC Circuit Court of Appeals (and who for the record I told my mother and friends would be a good choice but for his age), Obama’s nominee to fill Scalia’s vacancy. In the coming days and weeks, we will learn a great deal about his biography and positions, and with 19 years on the Court of Appeals there is a lengthy record to scour, no doubt bringing to light important positions on issues of privacy, speech, the constitutionality of the Affordable Care Act, and jurisprudential doctrine (the kinds of things that tickle my fancy but rarely make for good cocktail conversation unless I change my invite list).
Partisanship aside, there is no question of this man’s credentials to be appointed to America’s highest court. He was summa cum laude from Harvard College, magna cum laude from Harvard Law School, a member of the coveted Harvard Law Review, clerked for judge Henry Friendly on the 2nd Circuit Court of Appeals and for Justice William Brennan, served as a successful attorney, received bipartisan support in his confirmation to the DC Circuit Court of Appeals in 1997 (the circuit from which Supreme Court nominees draw heavily), and became chief judge in 2013. He is a centrist judge, and thus is not ideologically likely to alienate either party, with some liberal leanings but more pro-prosecution in criminal cases. We know that he has taken some broad views of First Amendment Rights, has defended some environmental regulation cases, but also held (and had reversed by the Supreme Court) the view that the DC Circuit lacked standing to consider Guantanamo cases. With continued challenges to EPA regulations, to the constitutionality of the Affordable Care Act, to antitrust, and other issues, who fills this vacancy is of monumental import.
An additional challenge in gauging the preferences of appellate judges is the fact that appellate judges rule in three-judge panels with high norms of unanimity, low rates of dissent, and even fairly low rates of concurrences. Characterized as “panel effects,” judges votes can be shaped importantly by the (purportedly) randomly assigned panel of judges with whom they sit in a given case, making individual preferences difficult to gauge (that is, a man sitting disproportionately frequently with other female judges may have a more pro-plaintiff view on sex discrimination cases, independent of his expressed preference on an all-male panel), and Senate hearings all the more important avenues for probing his positions on core matters of policy likely to come before the Court in the coming years. And while the Supreme Court does not reach the level of the economy or security in voters' Gallup polls of "most important issue," (in February 2016 the top economic issues were the economy in general, jobs/unemployment, and the deficit, and the top non-economic issues were dissatisfaction with government, immigration, and national security), and it is also true that most legal matters are resolved at the lower levels of the judiciary (the district and appellate courts) given the Supreme Court's limited and highly discretionary docket, it is undeniable that a change in the partisan balance of the Court has the immense potential to impact issues ranging from civil liberties to abortion to campaign finance to health care to business regulation, many of these issues touching at the core of our values as citizens if not in our everyday lives.
Garland will not prove an easy case for McConnell and others to make against holding a hearing, given his noted credentials and the problems posed by the ongoing vacancy on the Court. It is a true gamble whether to hold true to that determination and resolve going into the November elections given that the Senate Republicans are likely to suffer at least a few losses even if they do not lose control of the chamber (though that itself is unclear), and given the uncertainty as to the presidential election. In this case, Obama opted for a risk averse strategy of a known quantity with a solid record with bipartisan support. McConnell may do well to adopt the risk averse strategy of granting a hearing rather than accepting the uncertainty of a nomination with potentially very different political players.