I just got an email from Marc Ash, editor of the progressive news site, “Reader Supported News.” The title of the piece gives a clue about how exasperated Ash is at President Obama’s pick for his Supreme Court nominee. “Merrick Garland, What’s the Point?”
In the piece, he describes how Garland was someone that Senator Orrin Hatch, conservative from Utah, had suggested would be a good pick. And then Ash writes: “Battle? Ideological confrontation? Reshaping of the Court? Forget it – Garland is a safe pick for America’s ruling class. Obama punted. Hatch defeated him without a fight.”
I don’t suppose he’s really asking a question when he writes, “What’s the point?” More likely he’s declaring that he sees no point. But I’m going to venture an answer to the question anyway, because I think that Ash is likely missing the point.
The first issue to be examined is this: what chance is there that Merrick Garland, or anyone else President Obama might have nominated, will be confirmed?
I don’t really know, but if anyone offered to bet me that Garland or anyone else would be confirmed, I’d take the bet. Even if the odds were 2:1 to the no side, I think it would still be a good bet. The Republicans have dug themselves so deeply into this hole, and they have proved themselves so completely committed to an obstructionist approach to the whole Obama presidency, that I just don’t see them backing down and doing the right thing. I hope I’m wrong, but that’s my bet.
If neither Garland nor any other possible nominee would get confirmed, then the question is: What’s the best strategy for punishing the Republicans for their disgraceful behavior?
Here’s probably the main answer to Marc Ash’s “What’s the Point?” question. If we cannot fill the vacancy opened up on the Court by the death of Scalia because the Republicans are so fixated on power above all — American tradition and the spirit of the Constitution be damned — then the job at hand is to use their conduct to bludgeon them in the court of public opinion in this election year.
Ash writes: “Obama will leave the Presidency as he began it, wrapping his policy and legacy around not offending white Republicans. It’s a travesty and an abdication.”
If that’s what the President is doing, that surely would be a shame. But I’m betting that what the President is doing is not trying to appease the Republicans but rather using this moderate and apparently first-rate and unobjectionable judge to give him and the Democrats a bigger club with which to bludgeon them the harder.
But what if I’m wrong about the Republicans continuing to refuse to confirm the President’s nominee? What if Garland does get a seat on the Supreme Court.
Ash writes: “We fight for a better, more just nation.” He thinks Garland is clearly not worth fighting for. But just what do we really need in the person who fills this vacancy?
I must confess I have not yet studied the record of Judge Garland. But I do have some thoughts about what is, and what is not, of true importance in the filling of this seat. What does not matter terribly much is whether we get a justice who is way out on the progressive end of the spectrum. The question that would be important to me is simply this: If this judge had been sitting on that bench instead of Antonin Scalia, how many of the terrible 5-4 decisions would have gone the other way?
My sense is that one does not need anyone very far to the left to shift that balance in the right direction. Some of those 5-4 decisions have been truly terrible — like on campaign finance and on the Voting Rights Act. To wager once again: I would bet that even if Sandra Day O’Connor had been in her old seat, rather than Justice Alito who replaced her, even that Reagan appointee would have spared us some of these travesties.
What we need on the Court, then, is someone sane and reasonably fair-minded, who has not altogether signed on to assisting the corporatist takeover of the nation.
So even though I don’t expect Judge Garland to be confirmed, and even though I am hoping that a President Hillary Clinton and a Democratic-controlled Senate will appoint a first-rate progressive judge next year, I doubt that the nomination of this centrist judge is the terrible news that Marc Ash thinks it is.