WashU Expert: Garland more palatable to Senate Republicans than potential nominee of next administration

Supreme Court

President Barack Obama’s nomination to the Supreme Court, Judge Merrick Garland, could make senate Republicans think twice about stonewalling the nomination process, especially as the presidential election nears, said Greg Magarian, constitutional law expert at the School of Law at Washington University in St. Louis.

“President Obama may have decided that the Democratic candidates didn’t need a nomination fight to animate the base,” Magarian said. “He may be signaling to Senate Republicans that they should approve his nominee, because a potential Democratic president, possibly backed by a Democratic judiciary committee, won’t give them a nominee this palatable next year.”

Greg Magarian
Magarian

Garland is probably the most conventional, least controversial choice that Obama could have made for the court, Magarian said.

“Judge Garland is the kind of nominee we haven’t seen since President Bill Clinton nominated Stephen Breyer more than two decades ago: a veteran appellate judge with a reputation for centrism and pragmatism, a nominee who doesn’t excite the president’s political base and a relatively old nominee,” he said.

Garland, 63, is the oldest nominee since President Richard Nixon nominated Justice Lewis Powell.

“What Judge Garland lacks in appeal to the Democratic base, he makes up for in substantive qualifications for the court,” Magarian said. “He has served on the U.S. Court of Appeals for the District of Columbia Circuit for almost two decades.

“He has a strong reputation throughout the legal world as a brilliant mind and a careful, meticulous thinker and writer. He has held high positions in the U.S. Department of Justice, and he was a partner at a leading D.C. law firm. He graduated at the top of his class at Harvard Law School, and he has published legal scholarship on antitrust law.

“By any conventional measure, it’s hard to imagine a better qualified candidate for the Supreme Court,” Magarian said.

Garland has written few court opinions that give strong indications of his substantive views on contentious legal issues, Magarian said.

“Judge Garland has a notably conservative record on criminal justice matters, likely reflecting his background as a prosecutor,” he said. “In other respects, he seems likely to vote with the court’s liberals much more often than not. He clerked for liberal Justice William Brennan, he has always served in Democratic administrations, and Bill Clinton, a Democratic president, appointed him on the bench.

“In short, he’s a Democrat, but not a particularly partisan or ideological Democrat,” Magarian said. “He appears likely to think issues through carefully, based on the circumstances of the particular case before him.”

Based on his non-ideological profile and his substantive qualifications, Judge Garland should be an easy case for confirmation, even in a Republican Senate, Magarian said.

“The fact that the Senate GOP leadership has vowed not to give any nominee of President Obama a hearing makes this nomination as much about politics as law,” he said. “President Obama could have chosen a strongly liberal and/or demographically diverse candidate to animate the Democratic base. Instead, the president appears more interested in maximizing his odds of breaking through Republican resistance.”

If President Obama is simply thinking that he wants a nominee of the most impeccable qualifications who raises the fewest possible red flags ideologically, Magarian said, he couldn’t have made a better choice than Merrick Garland.

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