Mark, Dahlia, and Akhil,
I agree with much of what all three of you have said about the nomination of Judge Merrick Garland to the Supreme Court, but I want to focus on just two points. First, it is true that President Obama could have made another glass-ceiling–breaking appointment to the Supreme Court but didn’t. I was not part of the decision-making process and have no inside information. Nonetheless, I believe that, whomever the president did choose to nominate would have to have been able to withstand being made a piñata for the next several months, including the real possibility of not being confirmed. President Obama knew this when he made his decision. In his Rose Garden announcement on Wednesday, he even called out Sen. John Cornyn for saying the next nominee would be treated as such. “To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people might be treated, as one Republican leader stated, as a political piñata. That can’t be right,” Obama said. He’s correct. But he’s also correct in knowing that this was what was going to happen no matter whom he selected and he needed a nominee who could best withstand it. Judge Garland fits that bill best.
The possible downside for most, if not all, the other candidates mentioned is that the pummeling—including a failed confirmation—would hurt their futures. You acknowledge this, Mark, in your own post on the subject, but argue that a candidate like Sri Srinivasan or Ketanji Brown Jackson might have lived to be nominated another day. That might be true, and it might not. Frankly, given Judge Garland’s age, he was unlikely ever again to have this opportunity either way; he would have continued to be chief judge of the prestigious court on which he currently serves; and his nearly two decades on the U.S. Court of Appeals for the District of Columbia on their own already would have made a substantial judicial legacy. As many people have said, Judge Garland was always a long shot for a Supreme Court nomination, for a variety of reasons, including but not limited to his age. So, the upside of even being nominated was huge for him and the downside—that the nomination would be torpedoed from the start—was never very great. None of the other, younger candidates could make the same claim; for each of them, the upside was of course huge but the downside was the possible damage to any future chances for a nomination, which should be quite real for many of the names mentioned in this search process. Once someone has failed to be confirmed to the court, it is likely to be viewed as a negative rather than a badge of honor.
The second point I wanted to discuss has to do with Dahlia’s excellent question about whether we have become too partisan to pull back from the brink now. Her argument, I think, is that it might be too late in the day for an appointment that is all about merit to change the way we think—or fight—about judicial nominations. I do not know if it is too late in the day for that. Maybe it was too late in the day when Sonia Sotomayor was grilled by Republican senators for possible “prejudices.” Or maybe it was too late in the day when Harriet Miers saw her nomination go down in flames. Or maybe it was too late when Robert Bork was voted down. But, there is another thing that cannot be ignored, and that is the extent to which we are accustomed to including in our determinations of merit a nominee’s likely ideology—how we expect that nominee to rule once he or she is confirmed to the Supreme Court. The question is whether it is too late to talk about Supreme Court nominees without discussing their likely judicial ideology.
Here’s a relatively short answer to that profound question: We have long expected presidents and senators to take ideology into account, at some point in the process (see the list above). This is why no one would have expected President George W. Bush to nominate Judge Garland as chief justice rather than the very able judge he did nominate to the position, John Roberts (whose credentials were, of course, stellar). Nor would we have expected President Obama to nominate Judge Samuel Alito Jr. (had he not yet been on the court) instead of Judge Garland. This is one way in which elections do matter; that is, presidents do get to make that kind of choice and that choice will inevitably be based at least partly on ideological kinship. The question, now, is whether the Senate should be able to not only second-guess that choice and express a different preference but to not even consider the choice. If our past is of any relevance here, we should note, as many have done, that the Senate has usually confirmed well-qualified nominees with moderate or centrist constitutional views. They’ve always at least given those nominees a fair hearing. In the weeks and months ahead, the possibility of this trend being continued, or completely and possibly permanently upended, will be the principal thing being tested in the battle to fill Justice Antonin Scalia’s seat.