[EL] Garland

[Rick Hasen]

    Merrick Garland as Obama Compromise #SCOTUS Nominee, But Not (Only)
    Because of His Moderate Politics <http://electionlawblog.org/?p=80915>

Posted onMarch 16, 2016 7:16 am 
<http://electionlawblog.org/?p=80915>byRick Hasen 
<http://electionlawblog.org/?author=3>

In the moments after Justice Scalia’s death, my first thoughts (as 
reflectedin this blog post <http://electionlawblog.org/?p=79915>) was 
that the President could well nominate Merrick Garland to fill Justice 
Scalia’s spot on the Court.  I wrote: “This is a highly polarized time, 
and strong conservatives will fight VERY hard to have Republicans block 
a liberal appointment to the Court. So the Obama administration faces 
something of a choice. Nominate a hard-core liberal who could be 
filibustered by a Republican Senate, or nominate someone more moderate 
(Judge Garland?) who could PERHAPS get confirmed if enough Republicans 
would be willing to go along.”

Garland is indeed a moderate, someone who will not excite the Democratic 
base the way other nominations would.  But the same could be said for 
Sri Srinivasan, who seemed to havethe inside track 
<https://twitter.com/rickhasen/status/709918292102656000> for the 
nomination until moments before the Garland news leaked.  While Garland 
and Srinivasan may differ slightly on ideology, it is not enough to sway 
Obama to choose one over the other.

So what explains Garland over Srinivasan? One possibility, as I 
suggested on Twitter last night, is that Srinivasan did not want to be 
nominated, to be the “pinata” with less than even odds of being 
confirmed.  He’d rather save himself for the next Democratic president. 
  That’s certainly one possibility.

The other is that Garland was chosen because he is significantly older 
(63 vs 49).  I have suggested (in the last chapter of Plutocrats United) 
that one way to compromise on SCOTUS nominees is an 18 year term limit. 
  Appointing someone who is 63 moves in that direction. It gives the 
President a win, but one which as a matter of probability and actuary 
tables won’t be on the Court as long.  It is a way for Obama to say that 
he could have reached for greater power over SCOTUS, but compromised.

In short, Garland’s age, which may make some liberals oppose his 
nomination, may be precisely what is attractive to the President who 
actually wants to appoint someone to #SCOTUS, and not just put up the 
human pinata.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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