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The President and the Persuader


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.



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