Merrick Garland as AG… Is that really the best we can do?
He seems like a nice guy, but is that what we need today?
Like most progressives, I nurture an enduring resentment over the theft of Barack Obama’s appointment to the Supreme Court in 2016. I must admit that news of Antonin Scalia’s death took my breath away, and I briefly fantasized about a progressive Supreme Court majority.
Even though Obama nominated DC Circuit Court Judge Merrick Garland to Scalia’s Supreme Court vacancy in February 2016, a full 269 days prior to the 2016 election, Mitch McConnell and his Republican henchmen refused to grant Garland even a hearing, claiming falsely that a tradition existed of not confirming Supreme Court Justice nominations in an election year. Senator Lindsey Graham (R-SC) even argued, on video,
“I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” —Sen. Lindsay Graham
Just reading those words again, knowing what actually happened, makes my blood boil again.
It’s especially galling to me that after McConnell blocked the Garland nomination in addition to hundreds of other judicial nominations, he proceeded to assist Trump in appointing three Supreme Court justices, a full third of the Court, including Judge Neil Gorsuch to fill the vacancy Garland had been nominated for.
Plainly, as a result of McConnell’s intransigence, the Supreme Court now has a 6–3 conservative majority rather than a 5–4 progressive majority. Even though it is outrageous, you have to respect his political skills, and McConnell himself called blocking blocking this nomination his “proudest moment.”
Much as I shared in the outrage of my liberal brethren over the Senate’s treatment of Garland, he was never my dream judge. Indeed, according to reports, he was never the dream judge of most Democrats. He was a mild-mannered moderate, well-respected and well-liked by jurists and legislators on both sides of the aisle. The media referred to him as a “centrist.” In other words, he had done a good job not pissing anyone off, an achievement in Washington, to be sure.
Obama never let go of the dream that he would be able to work productively with Republicans. That is why he proposed what was largely a Republican plan for his health care legislation. That’s why he appointed Republicans as his Secretaries of Defense and Veterans Affairs. He thought he could compromise with Republicans and convince them to work with him. Indeed, as a candidate he had pledged to “turn the page on the ugly partisanship in Washington, so we can bring Democrats and Republicans together to pass an agenda that works for the American people.”
Obama could not deliver on that promise. It was not for lack of trying. It was due to a strategic decision McConnell made to block anything Obama proposed. As Obama wrote in his recent memoir, McConnell once told him in response to pleas for cooperation that “you must be under the mistaken impression that I care.”
So Obama, in the final year of his Presidency, made a strategic decision to nominate a Supreme Court Justice who was largely acceptable to Republicans. But he forgot the lesson McConnell made so clear to him: Republicans don’t care. As the saying goes, when someone tells you who they are, believe them.
My ideal Supreme Court nominee would be someone much like AOC or Ayanna Pressley, a confirmed progressive woman of color who is less than fifty years old. Nothing would make me happier than another Sonia Sotomayor on the Court. A 63-year old moderate straight white guy does not get my juices going. Indeed, it has been argued that the lack of grassroots enthusiasm among liberals for Garland hurt his nomination.
There was talk that Hillary Clinton would appoint someone else to the seat if she had won the Presidency. But some Democrats urged her to renominate Garland since he “deserved it.” Had Clinton won the election, this would have been a brutal internal fight.
Joe Biden is fundamentally a decent, loyal person. He clearly feels badly that Garland never got his chance. But that is no reason to appoint someone Attorney General. Garland may be a good guy who was treated unfairly, but right now, we need a fighter.
After all, that is what Trump had. In both Jeff Sessions and Bill Barr, Trump had Attorneys General who were willing to bend the rules to help Trump, even if ultimately they couldn’t do enough for him. I would argue, in fact, that nobody can be sycophantic enough for Trump, especially when serving in a position like Attorney General that must respond to the law. Nevertheless, Trump’s AGs shattered norms and ruthlessly pushed forward a conservative agenda.
Healing the Department of Justice will take someone who will just as aggressively push back against the Republican outrages over the past four years. And Biden had some good choices for that task. Sally Yates, for example, comes to mind. She had served as Assistant Attorney General, and she stood up to Trump after he was first elected, costing her her job. That is the kind of strength we need in that position. Healing will come with shock treatment, not trying to get along with Republicans.
My wife suggested that Garland may have a chip on his shoulder after the way Republicans treated him. I hope she’s right, and his experiences have put a fire in his belly. Unfortunately, I am skeptical that is the case. After all, Lindsay Graham — yes that Lindsay Graham — has stated that he supports Garland’s nomination for Attorney General. If that isn’t enough to turn your stomach, I don’t know what is.
Ultimately, the Garland appointment should be one that concerns liberals. We should be thrilled by Biden’s victory and our wins in Arizona and Georgia, allowing us to take control of the Senate. But the damage Trump has done over the past four years needs undoing. I certainly hope Biden has learned from his experiences in the Obama administration and doesn’t think that these Republicans in Washington can be reasoned with.
