President Obama took Senate Republicans’ publicly declared refusal to even consider any judicial nominee of his, not surprisingly, as a line in the political dirt.
Wednesday morning he stepped over it, announcing his selection of appeals court Judge Merrick Garland as his choice for associate justice of the U.S. Supreme Court, to fill the seat vacated by the recent death of Justice Antonin Scalia.
Garland, 63, currently serves as chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, so he is not unfamiliar with federal law. He headed the prosecution team after the 1995 domestic terrorist bombing of the Murrah Federal Building in Oklahoma City, and as a young lawyer he clerked for Justice William Brennan and federal Judge Henry J. Friendly, both Eisenhower appointees.
What, if anything, Senate Republicans will do next, now that the president is standing on their side of that line in the dirt, will be interesting to watch.
Obama, of course, has almost a year left in office, and no doubt most observers in both parties expected him to pick a solidly credentialed moderate nominee like Garland. To do otherwise would not only have been the epitome of sheer political futility, but it would in many minds have vindicated Republican intransigence on the issue.
Whatever one thinks of Obama, he is not stupid, and he shrewdly chose somebody whose rejection Republicans would find hard to justify.
Which, of course, is one of the obvious reasons for the GOP blocking the courthouse door in the first place. They don’t need the fallout of rejecting an eminently qualified jurist for no other reason than their utter and unqualified loathing of the president who nominated him. And make no mistake: Every other “principle” invoked in this standoff is pure political smoke.
(Incidentally, people should stop calling Obama, or any second-term president, a “lame duck.” That term applies to one who, like Jimmy Carter or George H.W. Bush, has lost a bid for reelection.)
Meanwhile, the president was blowing some pretty thick smoke of his own: A Supreme Court nomination “is supposed to be above politics. It has to be. And it should stay that way.”
That’s pure twaddle. No such process has ever been “above” politics (though some have actually managed to sink below it). Both parties have thrown out absurd political obstacles before — Democrats’ petty pasting of Robert Bork comes readily to mind — and will continue to do so.
The idea that presidents in their last year of office should not nominate justices has been proposed before — by, among others, now-Vice President Joe Biden. (It apparently was a principle nobody in either party applied to Ronald Reagan when Anthony Kennedy was confirmed unanimously.)
But a flat refusal even to consider any nominee — sight unseen, name unheard, credentials unknown — was a ratcheting up of partisan pettiness. The election-year rationalization that Americans “should have a say” is ethically feeble and transparently selective.
Obama, in nominating Garland, has nothing to lose. That can’t be said of his political foes, as savvy Republicans are becoming acutely aware.