On a sunny afternoon in the White House Rose Garden, President Obama used his constitutional right to put the Republicans between a rock and a hard place.
Merrick Garland was a normal choice. He is a respected, moderate judge who has spent most of his law career serving in the government. But this process is not about him. In fact, this has little at all to do with filling a Supreme Court seat. Thus, Garland, with his distinguished record, has offered himself up as an obvious pawn in a political game of chess.
President Clinton nominated Garland to the D.C. circuit in 1995. He became chief judge there in 2013. His nomination received support Senate Republicans. Those who voted against him voted not against his personality. Rather, they opposed adding a twelfth judge at all.
Obama considered nominating Garland in 2010. That same year, Orrin Hatch of the Senate Judiciary Committee told the press that Garland would definitely be confirmed for a seat on the Supreme Court.
As predicted, the process is quickly turning into a game of political uncle. Republicans maintain that they will not allow Obama to fill the seat. Party leaders continue to maintain that it’s about the principle, not the personality. They simply don’t want Obama to choose a Supreme Court judge even if he chose the oldest, whitest and most conservative man in the room. Merrick Garland has a long legal history, including dealing with medical negligence assist laws and constitutional matters.
However, the political landscape is not the same as it was in January. There is a significant chance that the Republicans will have to give way on this issue.
When Justice Scalia died, Donald Trump had not won a primary. The question of the potential loss of senate seats was also far from the minds of Republicans. Now, Republican nightmares are becoming a reality. In November, the party could lose control of the senate and have a president they don’t like. Neither of those things appeal to them but the possibility of both happening at once is growing stronger.
Thus, confirming Garland now or in a lame duck session is the only strategy in which they can protect themselves from a wild card nominee from Clinton or Trump. It may also be a requirement for keeping their seats in the November elections.
Still, the dissent was too public for the Republicans to take back wholeheartedly. Obama is not likely to fold either. His presidency is full of these kinds of offers designed to expose Republicans as being extreme. Obama also has nothing to lose because his offer makes Republican opposition look petty at best.
Merrick Garland, a judge that Democrats and Republicans can agree would make a fine justice, will now become the public face of what has grown to be a very bitter partisan war. Even if the Republicans choose him, the choice will come from fear rather than merit. Thus, even if he somehow becomes the next justice, the victory is not worthy of his long and distinguished career.
There are only losers in a partisan war and unfortunately, Garland will now be one of them.