The President and the Persuader


The process of selecting a new Supreme Court justice to fill the soon-to-be-vacant seat of John Paul Stevens formally commenced this week, when Barack Obama summoned a handful of Senate grandees to discuss the matter at a meeting in the Oval Office. Obama, predictably, didn’t tip his hand as to whom he is considering. But, then again, he really didn’t need to—given that the president’s short list to fill the slot has been almost as widely disseminated as the photos on the White House Flickr stream.

Of the top three candidates, Solicitor General Elena Kagan has attracted at once the most attention and criticism, mainly from the left, which worries that she could turn out to be a mirror-image David Souter—a supposed liberal who winds up pushing the high court to the right. Much discussion, too, has attended the trio’s other female: federal appellate judge Diane Wood, who is seen as the most progressive of the three but also the most likely to prove contentious, owing partly to her strong advocacy of abortion rights.

Concerning the third front-runner, however, there has been precious little hubbub. The candidate in question is Merrick Garland, a Bill Clinton appointee to the U.S. Court of Appeals for the D.C. Circuit. Garland is well known, well respected, and tremendously well liked in Washington legal circles; even Republicans have nice things to say about him (which has both advantages and disadvantages, about which more shortly). Yet Garland also happens to possess certain qualities that are, shall we say, politically suboptimal. He is white. He is male. And he’s 57 years old—compared with, say, Kagan, who at 49 offers Obama a chance to leave his mark on the court for perhaps an additional decade.

Three strikes and Garland’s out, you say? Well, you may be right. But that would be a real shame—because the case for making him one of The Supremes is, in fact, compelling. For Obama, who is said by some of his advisers to be more keen on finding a liberalish version of John Roberts than a hard-left incarnation of Antonin Scalia, Garland’s juridical rigor, even temperament, and intellectual firepower should be attractive. And although he is more centrist than many of the other short-listers, his consensus-building skills might make him, paradoxically, the best progressive hope for staving off the court’s ever more conservative tilt.

A consummate Beltway insider, Garland clerked for William Brennan, worked as a litigation partner at Arnold & Porter, and served in the Carter, Bush 41, and Clinton administrations; in the last of those gigs, he oversaw the Oklahoma City bombing case. Since he ascended to the bench, Garland has won many fans, Republicans among them, with his careful opinions and lack of overt ideological bias. Garland counts Roberts, with whom he clerked as a young man, as a friend. Orrin Hatch has sung his praises. Ed Whelan, a former Bush 43 Justice Department official, calls him “the best nominee that Republicans could hope for.” Right-wing judicial activist Curt Levey adds, “You’ll have, if not a love fest, something close to it if [the choice is] a Garland.”

All of which, naturally, raises suspicions in the more reflexive precincts on the left. “Supreme Court Fight: Conservatives Baiting Obama to Pick Merrick Garland” ran the headline on a blog post at Firedoglake a couple of weeks ago, when those Whelan and Levey quotes first surfaced. Underlying this kind of reaction is an inchoate but pervasive tendency among many progressives to presume that any nominee who would yield a (relatively) smooth confirmation process must simply not be worth the candle. A Democratic strategist with long experience in shepherding Supreme Court picks through the Senate puts it another way: “The left seems to judge how good a pick is by how big a fight it causes.”

It requires neither genius nor a particularly acute memory to see the flaws in this logic. “I think that conservatives are pretty happy with the way Roberts turned out, even though he got 78 votes and sailed through the U.S. Senate,” notes Doug Kendall, president of the progressive Constitutional Accountability Center. “The test shouldn’t be how many no votes you get. The test should be whether you get a worthy successor to Justice Stevens—and if you get a confirmation that looks more like John Roberts’s than Sam Alito’s, so much the better.”

For Kendall, like many other savvy left-leaning but reality-based analysts of the court, one of the central qualities—maybe the central quality—of any prospective Stevens replacement should be a talent for which the outgoing justice is justly famous: stitching together unexpected coalitions, influencing more-conservative justices, either winning their votes or persuading them to embrace more moderate reasoning and sign on to less activist opinions. On the current court, this often boils down to having sway with Anthony Kennedy, the swing vote on many pivotal issues. But it also means the ability, on occasion, to move Roberts or Alito. (The only thing that would typically change the minds of Scalia and Clarence Thomas would be a frontal lobotomy.)

A Stevens-like capacity for suasion has been one of the hallmarks of Garland’s tenure as an appellate judge. On a court that has generally leaned to the right over the past two decades, he has succeeded time and again in bringing one or more of the chamber’s powerful (and stubborn) conservatives over to his side. He induced Douglas Ginsburg to join him in ruling that the Endangered Species Act protected a spotted toad from a housing development in California. He secured Roberts’s support in upholding federal authority in an anti-discrimination suit on the basis of disability. And in Parhat v. Gates—which tested the Bush administration’s methods in detaining prisoners in Guantánamo Bay—he won the support of two Republican-appointed justices, Thomas Griffith and David Sentelle, in rebuking the use of hearsay evidence in deeming one detainee to be an enemy combatant. Writing for the unanimous panel, Garland acidly invoked Lewis Carroll’s “Hunting of the Snark”: “The fact that the government ‘said it thrice’ does not make an allegation true.”

Those are just three cases, of course, but there are plenty more of a similar stripe where they came from. Garland’s thirteen-year record is voluminous, touching on virtually every important area of the law. And this is one of the key arguments for tapping him over Kagan. In Glenn Greenwald’s recent wave-making takedown of the solicitor general in Salon, the lefty legal scold strained to find in Kagan’s slender record enough rope to hang her as an adherent of an overly expansive, Bush-Cheneyish view of executive power. But Greenwald was on firmer ground when he contended that the paucity of Kagan’s statements on constitutional matters, the utter lack of evidence that she has a well-developed judicial framework, would make her selection a pig-in-a-poke affair. Nothing could be further from the case with Garland.

Or with Diane Wood, for that matter. But here, too, Garland might prove the superior choice. Though Wood is a terrific jurist and legal thinker, she is also a combative presence on the bench. For the pair of conservative judicial powerhouses whom Wood counts as her colleagues—Richard Posner and Frank Easterbrook—this has not been problematic; they attest to enjoying the cut and thrust of jousting with her. But on the Supreme Court, the dynamic might be different. “How her personality would play on the court is a real question,” says a liberal scotus-watcher and fan of Wood. “If you have somebody throwing bombs and it pushes Tony Kennedy into the conservative camp, that’s not helping the cause.”

From the progressive perspective, Garland isn’t perfect, to be sure. (But then who is? Or, rather, who is that’s actually confirmable on the planet we currently inhabit?) Liberals concerned with preserving what’s left of the Warren Court’s legacy on criminal law will find his record too prosecution-friendly for their tastes. And Garland has shown none of Stevens’s invaluable penchant for the occasional thundering dissent—see his scorcher in the Citizens United campaign-finance case—that both provides a liberal touchstone and reminds the world just how far the court has lurched to the right.

But these are quibbles. On some of the most important issues facing the court—the environment and labor law, to name two—Garland is every bit as progressive as Stevens, and much more so than the older judge was when he arrived on the high court. And Garland’s tendency toward statutory deference (a conservative principle, in the proper meaning of the term) should be seen as a crucial quality by Obama, among whose main goals with this pick must be to protect the legislative gains of his presidency.

No doubt there are picks that would be more politically correct than Garland. And no doubt there are those who, individually, would be further to the left than he is. But employing those criteria to make this selection would be a mistake. Among card sharks, there are two types of players: those who focus on the cards in their hands, and those who strategically play the table. (Guess which type is more successful.) If Obama is reading the table now, I think, Garland should be his man—and it’s worth noting that, by every account, the president has always been a hell of a poker player.


Read the original article here.

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