Less than a fortnight ago Republican Sen. Orrin Hatch said that Obama could and should nominate a moderate to the Supreme Court, one such as Chief Justice of the D.C. Circuit Court of Appeals Merrick Garland. But because it’s an election year, Hatch said, the president would no doubt pick someone more heavily slanted to the liberal side of things. Today Obama announced that his Supreme Court pick is…Merrick Garland.
In the grand tradition of compromise, Garland, 63, may have enough in his past decisions to leave everyone unhappy. Obama probably selected Garland because he has the moderate bona fides to squeeze through the nomination process. However, the former prosecutor who tried Timothy McVeigh and the Unabomber in the 1990s is an odd collection of policy tics in some ways.
He may not be very anti-gun—one of his decisions helped lead the Supreme Court to pick up the gun rights case DC vs. Heller (2008)–yet he’s less keen on habeas corpus, at least when it comes to residents of Guantanamo Bay challenging their indefinite detainment. Garland has supported an Iraqi who sued over torture. He has a decently pro-transparency record, and he may indeed vote in favor of the release of the full version of the Senate’s investigation of CIA torture. Garland and another justice mentioned as a potential Supreme Court choice, Judge Sri Srinivasan, are set to review this question next week on a panel.
More of a bummer is Garland’s past defense of the war on drugs. Anyone who has served as a prosecutor or a judge has probably helped prop up this nasty business to some extent. However, as recently as 2013 Garland backed the Drug Enforcement Administration (DEA) in its battle against rescheduling marijuana. According to the DEA (if not science or sense), marijuana is “schedule one”, same as heroin and other nastier things. In short, Garland isn’t godawful, but he is fairly meek in his decisions. He mostly goes with the flow.
Obama is counting on Garland to be less objectionable than a blisteringly liberal choice. However, he shouldn’t underestimate the peevishness of the Republican Senate, especially during an election year during which the party is being mutilated by superpredator Donald Trump.
On the other hand, even surly partisanship should not obfuscate the fact that for Republicans, an Obama (or, you know, a Hillary Clinton!) nomination could be a lot worse than Garland. Maybe they will let him be, and the balance of the Supreme Court will not tip as dramatically as most people assumed after the death of Antonin Scalia. Maybe a vaguely disappointing moderate is indeed the best the liberals and conservatives can do here.