In a mild surprise, the president this morning announced that D.C. Circuit chief judge Merrick Garland would be his nominee for the open seat on the U.S. Supreme Court. At 63, he’s older than most of the candidates that were being batted around, and also has no particular constituency group backing his elevation (unlike, for example, Garland’s junior colleague on the D.C. Circuit, Sri Srinivasan, who has attracted significant Asian-American support).
You can expect to hear some pious sounds from the White House and its affiliates over the next few days predicting Senate confirmation of Garland thanks to his relatively “centrist” reputation. But that’s just Kabuki theater. At this point, confirming any Obama nominee will require a complete about-face by Senate Majority Leader Mitch McConnell and Judiciary Committee chairman Chuck Grassley, who have taken the categorical position that the next president should fill the SCOTUS vacancy. Even if they somehow relent, there would definitely be a Republican filibuster — Ted Cruz has vowed to launch and lead one himself in the unlikely event no one else does — against Garland, as with any other Obama nominee. That means it would take 14 Republican votes to break that filibuster, against the vociferous opposition of conservatives everywhere, including the powerful anti-abortion movement that would go to inordinate lengths to prevent Antonin Scalia’s seat from falling into the hands of a jurist likely to uphold abortion-rights precedents. It just ain’t happening, folks.
Now there is a convoluted scenario whereby Garland might be confirmed in a post-election lame-duck session if Hillary Clinton has won the presidential election and Democrats have retaken control of the Senate. Facing a potentially more liberal nomination from Clinton and the likely invocation of the “nuclear option” by Senate Democrats to take away the filibuster weapon against SCOTUS confirmations, maybe Republicans would decide to put Garland on the Court as the least of many evils. Even then, many conservatives in the Senate would shrink from the intraparty consequences of voting for a baby-killing defender of executive tyranny. But that could be the only way Garland makes it to the Court. Precisely because he’s a white-bread 60-something jurist who already has a lifetime appointment to the best non-SCOTUS judicial gig in the land, nobody’s going to get that upset if she turns elsewhere. He’s the perfect sacrificial nominee.