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The President and the Persuader

Obama doesn’t need a progressive on the court; he needs someone who can move it to the left.


Illustration by André Carrilho  

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.)


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