WASHINGTON — There are at least two ways to view President Obama’s decision to nominate Merrick Garland for the Supreme Court. They will be repeated often over the next few days.
One is this: Garland — a 19-year veteran of the D.C. Circuit Court of Appeals and well-known centrist who has garnered praise from Republicans and Democrats alike in the not-at-all distant past — represents another Obama masterstroke of strategy and political genius. Unquestionably qualified, a former respected colleague of Chief Justice John Roberts, Garland is a man who shares much in common with members of the Supreme Court who were confirmed with relative ease. Garland has been the subject of effusive praise from some Republicans, namely one Sen. Orin Hatch, R-Utah. And Republicans seeking to block any progress on his nomination now will have to get about the exhausting calisthenics of disavowing relatively recent praise of Garland while simultaneously depicting their opposition to confirmation hearings as a matter of principle, not politics.
But independent of the great and ongoing political power struggle of 2016, Garland is also a nominee about as rooted in the non-disruptive wing of jurisprudence as a judge can be. He is white. He is male. He is straight and married to one woman for nearly 30 years. He is not simply a Harvard Law man, but a man with double Harvard degrees. He’s a Harvard-Harvard, as Harvard grads say about the cabal of the freakishly smart Harvard grads who earned both undergraduate and professional degrees at the vaunted school, and he was valedictorian of his undergraduate class.
He is also a nominee with a well-established record of ruling against criminal defendants seeking appeals and retrials. Now beyond his record on criminal appeals, no part of Garland’s personal or professional resume seems likely to be characterized as a political problem. And even that criminal appeals record will not likely be a sticking point, even on the far left. Judges are a species in the habit of supporting and effectively ratifying the decisions of others. To overturn almost anything is regarded inside the judicial world as a rather big deal.
So rather Garland’s nomination will be described as a bit of a disappointment to some Americans — particularly black Americans. It will be viewed and described as a bit of a letdown to those who believe that an insulting and dangerous absence of radically transformative, equality-expanding thought has existed on the court ever since President George H.W. Bush nominated the man who is now Justice Clarence Thomas to fill the Supreme Court seat once held by Justice Thurgood Marshall.
In truth, both reads of Garland and his nomination are in some ways about right. But taken together, they are as much a statement about Garland as they are a clear and telling statement about Obama’s legacy. Obama is a president and lawyer in possession of an agile and formidable mind, capable of tangling with the orneriest and, in some cases, illogical congressional Republicans (Rep. Joe “You Lie” Wilson does come to mind) with sufficient grace and stratagem to sometimes emerge victorious — but rarely irreparably sullied. Garland is Obama’s judicious, deliberate and pragmatic nature, personified.
Obama — despite the huge expectations and misplaced anger and disappointment of the far left — may be a symbol of a transformative moment in American life. But Obama the president has put rather restrained and decidedly centrist energy into transforming American life. Fate and the American voter made Obama president at a time when no president could evade questions about terrorism, pluralism, race, religion and inequality. But a careful review of Obama’s record will also show that Obama broke few molds. He did, perhaps, jostle a few frames.
That is Garland. That is Obama. And short of massive, yet-to-be announced political action in his final year in office, that’s also the Obama legacy.
For those inclined to insist that Donald Trump and his populist campaign and the unhealthy appetites it appeals to — or increased public attention to racial disparities, or even the focus on economic inequality — are an outgrowth of Obama’s focus on black America and its priorities, Garland’s nomination is a confounding bit of evidence to the contrary. When given his third opportunity to nominate a candidate for a lifetime appointment to a court from which decisions can come and forever alter the shape and texture of American life, Obama did not select a black nominee or add, in any other way, to the court’s diversity of culture, character or experience. This despite top candidates including an Indian-American judge with a similarly moderate profile, Sri Srinavasan, and a well-respected black U.S. attorney general, Loretta Lynch.
Perhaps as notably, Obama did not nominate a man whom any person can say definitively is likely to either strike down or uphold the legality of affirmative action in college admission, public contracting programs or expand the means by which a person convicted of a crime might find a legal out. That is simply not who Garland is. Of course, nothing will stand in the way of the impulse of those on the right to describe Garland as a rabid agent of the left. But little in the way of solid evidence exists of that.
What the nomination of Merrick Garland amounts to near the end of Obama’s term unquestionably remains within the control of a Senate. That is, of course, a Senate with a Republican leader who has placed the defeat of Obama at every turn among his reasons for continued living and breathing. But what Garland’s nomination says about Obama is ultimately simple and clear: Barack Obama was a symbol of change but an agent of a just slightly left-of-center status quo.