March 16, 2016

"He could easily name Merrick Garland, who is a fine man," said Orrin Hatch a few days ago.

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him."

And that's the nominee we're about to get... according to CNN. How can the GOP Senators say no? It's a challenge!

ADDED: "Who is Merrick Garland?"
Garland’s relatively advanced age [63] may help explain why Hatch floated the DC Circuit chief judge as his ideal Obama nominee. Another factor that almost certainly played a role is Garland’s reputation for moderation. In 2003, for example, Garland joined an opinion holding that the federal judiciary lacks the authority “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States” — an opinion that effectively prohibited Guantanamo Bay detainees from seeking relief in civilian courts. A little over a year later, the Supreme Court reversed this decision in Rasul v. Bush....

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”...

The Garland nomination.... appears to be an attempt to box in Senate Republicans who’ve refused to confirm anyone Obama nominates.
But doesn't it also mean that Obama doesn't expect this nominee to be confirmed? It's a political game and he's chosen the best person for that game. Other names are saved for other games.

78 comments:

JMS said...

Hatch's comment was not a coincidence.

Michael K said...

I hope they can control the GOPe members. The WSJ is already complaining because some House members are angry about the Continuing Resolution and demanding "Regular Order" which I have been complaining about.

How dare they !

mccullough said...

Garland is anti-gun. Manchin and Heitkamp would vote against him. Garland is old and is willing to take one for Team Blue by letting his name get tossed into the ring. This is his 1% chance to get the job he wants.

Nonapod said...

Orrin Hatch...lol.

Eric the Fruit Bat said...

Merrick Garland is a pretty good name for a judge.

Char Char Binks said...

They already said no.

Limited blogger said...

Next!

rhhardin said...

Opportunity cost. It costs the Republicans an opportunity to fill the seat themselves.

rhhardin said...

Appoint Thomas for a second seat. He gets two votes.

That would break ties. An odd number of ones plus a two is always odd.

Static Ping said...

When was the last time a Democratic President nominated a "moderate?" I mean that in the sense that they broke from the liberal wing of the court in a case important to the left. I don't care about cases involving issues that do not break neatly along partisan lines, nor do I care about procedural issues that may be important to the justice system but are politically boring. I posit there is no such thing as a moderate nominated by a Democrat and certainly not this Democrat.

DON'T. YOU. BELIEVE. IT.

It really does not matter who the nominee is anyway. If the Republicans confirm anyone other than a Republican pre-approved nominee, the party will not survive. I'm not sure the country will survive either.

rhhardin said...

Not more justices, but more votes for existing justices. Then you know what you're getting.

HoodlumDoodlum said...

Eh, Robert Bork was a "fine man" and the Dems found a way. The Repubs are stupid, of course, but even they should be able to work it out.

Nonapod said...

Seriously though, if the Republicans cave on this... in the middle of one of the most massive revolts against the establishment in god knows how long... then they really are incapable of learning anything new.

dbp said...

Hold off on hearings till after the election, then if Hillary wins confirm him.

Dan Hossley said...

Senator Hatch is why Donald Trump exists.

traditionalguy said...

I say confirm him in one day. Checkmate.

~ Gordon Pasha said...

Don't worry, if Hatch likes him then he is sure to "grow in the office."

Robert said...

Since there's a high chance Clinton will be the next President, the Republicans would be wise to take an older moderate judge than risk being stuck with a young, far left one.

mccullough said...

Breyer and Ginsburg are more moderate than Brennan and Marshall. The GOPs problem is that their nominees often disappoint. Byron White, Kennedy's nominee, was more conservative than any GOP nominee, from Ike through W, than Thomas or Scalia. Breyer is more conservative than Stevens and Souter and not much more liberal than Kennedy and O'Connor.

Chuck said...

And more about Bork; he was confirmed by a unanimous voice vote to his Circuit Court seat. We then found out how different are the rules for SCOTUS confirmations.

William said...

He's sixty three which is good, but there's no mention of whether he has heart disease, diabetes or hypertension. There's a chance you might get stuck with him for twenty years or even longer. There's also no mention of religion. He looks kind of Protestant, but you never know. It's a sure bet that he's no Evangelical, but he might belong to that reform branch of Episcopalians which believe that God doesn't exist and you should get married in church. . They should have one legacy WASP seat on the Supreme Court so his appointment would be politically correct.

Sebastian said...

"But doesn't it also mean that Obama doesn't expect this nominee to be confirmed? It's a political game and he's chosen the best person for that game." OK, but none of it matters. For Progs, it's win, win (unless Prez Cruz puts a stop to their shenanigans.) They lose now, they come back with a lefty later. They get a "moderate" approved, and lo and behold, the "moderate" turns out to be a reliable lefty. Or the GOP gets its own "moderate" through, and whadayyaknow, s/he turns left as well.

mccullough said...

The GOP senators personally don't give a shit who is on the Supreme Court. It's all about re-election for them. Most of them get re-elected by opposing Obama. Their voters aren't into the nuance of "I voted for Obama's no one because he is old and Hillary will win in November and would put someone worse than Garland on the Supreme Court."

Douglas said...

No problem. Don't hold any hearings and don't get sucked into any discussions about Judge Garland before the election. If Hillary wins, then confirm him right away.

Alexander said...

In the spirit of those noble protesters at the Oscars,

#SupremeCourtSoJewish

David Begley said...

He has put people in jail. Bad guy.

Terry said...

Anyone to the left of Scalia will tilt the court to the left.
Lame duck presidents don't get to change the composition of the court. Where is the accountability?

Qwinn said...

I find this useful, actually.

Let's assume a conservative President in the future, and they start trying to pick a nominee with a moderate-to-conservative record that *won't* "grow in office" towards the Left as so many seem to. Merrick Garland has just been verified as one who would no doubt do so. We won't have to waste our time with him later.

"Breyer and Ginsburg are more moderate than Brennan and Marshall. The GOPs problem is that their nominees often disappoint. Byron White, Kennedy's nominee, was more conservative than any GOP nominee, from Ike through W, than Thomas or Scalia. Breyer is more conservative than Stevens and Souter and not much more liberal than Kennedy and O'Connor."

Everyone in that paragraph that is actually in the USSC votes lockstep with the most far left position possible every single time it actually matters, so I'm not sure how one can grade between them. No one even questions how they will vote, everyone knows, every time. It's like McCain and other "moderate" Republicans in the Senate and House. They will vote conservative every time they know they will lose anyway in order to burnish their credentials, but every single time their vote would actually matter, they vote with the Left.

Sammy Finkelman said...

I think that if he nominates Merrick Garland, this is a serious attempt to fill the vacancy, without gambling on who the next president is going to be. Obama actually wants to fill this vacancy himself. Note that he concedes on the issue of criminal justice and executive power in national security matters, and perhaps he's OK with many Republican Senators on some other matters. I think they would be very concerned about freedom of speech (Citizens United) non-extension of the establishment of religion clause, and interpreting laws as written, even if they are written badly.

Garland could get confirmed if the president elected in November is a Democrat, especially if the Republicans also lose their majority in the Senate, because the filibuster rule will go. But to confirm him in a lame duck session after November, they probably will have had to have held hearings before the election, or at least an investigation, even if they don't vote to send the nomination to the floor before November 8. Obama is probably prepared to make a committment that he will not withdraw the nominee if a Democrat is elected President.

J. Farmer said...

@William:

"There's also no mention of religion. He looks kind of Protestant, but you never know."

Garland is Jewish.

Guildofcannonballs said...

Duh the best person would be Wendy "kill that fucking kid" Davis.

It is hard to stay brilliant when surrounded by mediocrity.

J. Farmer said...

@Terry:

"Lame duck presidents don't get to change the composition of the court.

Where's that in the Constitution?

Basil said...

"Hold off on hearings till after the election, then if Hillary wins confirm him."

This.

Sammy Finkelman said...

"...if Hillary woins, confirm him right away"

The problem with not holfing hearings if that there might be some pressure on some Republican Senators not to vote for him, because now the process is too short, and Democrats like Charles Schumer might not vote him so you'd need almost all the Republican votes, and Obama might not have made a committment not to withdraw the nomination, so you'd want to go partway through the process. Also you might discover eitehr he's too much of a judicial liberal, or better than you think. What's so terrible about not voting to confirm on grounds of ideology and judicial philosophy?

Everybody knows this is happening anyway.

n.n said...

rhhardin:

Appoint Thomas for a second seat. He gets two votes.

Actually, there is a precedent for this. Democrats use vote multipliers with the justification that it equalizes democratic consensus.

Sammy Finkelman said...

"Garland is Jewish"

The situation of the Supreme Court not having any Protestants on it might therefore, continue. This fact upends a lot of claims of discrimination. He got his law degree from Harvard so that stays the sme, too.

But we get some diversity in that he does not come from one of the boroughs of New York City, but from Chicago.

Scalia was (oroginally) from Queens. Ginsberg is from Brooklyn (Kings County) Kagan is from Manhattan (New York County) and Sotomayor is from the Bronx.

Staten Island, as usual, is ignored.

Guildofcannonballs said...

Does any member of the senate have the balls and courage to pull a Ted Kennedy and smear/besmirch the character of the nominee, then insult said nominee in the ultimate form by saying "nothing personal," like that fat ugly cunt Kennedy did to Judge Bork?

If not, shouldn't the Leftists get the win via passionate emotions? They have proven at least they give a shit, whereas righties don't, hence deserving their perpetual acceptance of continual loss. At least the sell-outs got paid, unlike the stupid/loser voters of the GOP.

The fact asshole Kennedy was projecting means nothing to law professors, who actually do believe America is so racist and evil that only racist evil legislated and confirmed by courts can atone. They believe this because they know they and their colleagues are indeed the racist anti-Americans they falsely denounce, every single chance they can make to do so.

Roughcoat said...

Like so many GOP establishment types, Orrin Hatch ignites in me a blind raging fury. The mere sight of his face and sound of his voice propels me to DEFCON 1. Mitch McMcConnell, John Boehner, and Carl Rove, among many many others, have the same effect.

Guildofcannonballs said...

Imagine if Ted Kennedy were a right-winger: oh wait, you don't have to.

Even though Teddy was the Leftist lion of the senate, he is still projected by law professors and media types as why America sucks; with cause. He is the ultimate fat uglo-American, consumed by lust and greed and overeating himself to an early, fat grave.

As with Obama, the success of Ted is proof America is a racist shithole. Racist, evil fucks like these don't get elected anywhere else.

Dude1394 said...

They say no by saying "It is unfair to the voters to select a supreme court justice when a new president will be elected in less than 7 months. Then when asked reduce that to 6,5,4,3, etc. Turn and walk away".

It is easy..

J. Farmer said...

@Sammy Finkelman:

"The situation of the Supreme Court not having any Protestants on it might therefore, continue."

Yep. Read Eric Kaufman's The Rise and Fall of Anglo-America. I'm an atheist, but only an historically illiterate person could not see living in an Anglo-Protestant country has a huge benefit. Well that's long gone. And hence: America is doomed. We're just rearranging deckchairs on the Titanic.

Limited blogger said...

The American people may be ok with Clinton as POTUS(amazingly), but they are not ok with her filling the opening in SCOTUS(not amazing).

So confirming Garland would free up everybody to vote for Clinton.

Not confirming Garland assures a Trump win.

rehajm said...

Well that was quick. Thank you for being a contestant. Unfortunately, we have no lovely parting gifts.

Bay Area Guy said...

By Borking Bork, the Left already won the major cultural battles in our country.

With Judge Bork, abortion would be a state political issue, where it belongs, not a phony Constitutional right. Ditto gay marriage.

The Right did win on Heller (2nd Amendment), but that is precarious. Without Scalia, Stare Decisis goes out the window, and Heller can either be chipped away at the lower court level or reversed entirely.

I don't know if Citizens United is a major victory. I know the Left professes to hate it, which may be a good thing.

I hope the Senate GOP does not take up the vote of Garland, although he does see to be more moderate than Obama's other picks.


Matt said...

This is more of a gamble for the GOP than it is for the Democrats. If the GOP rejects him then they may be forced to deal with a Hillary pick, which will be further to the left than Garland. If they choose Garland then they at least get a moderate. Good pick by Obama.

Michael K said...

"If they choose Garland then they at least get a moderate. Good pick by Obama."

Nonsense on stilts.

Only the Trump haters think this is a good pick.

I don't even like the guy but he is going to win big.

rcocean said...

Obama had to pick a so-called moderate. The Republicans could have campaigned against a hard leftist. Elect us or you'll Left-wing judge X.

Michael K said...

"only an historically illiterate person could not see living in an Anglo-Protestant country has a huge benefit."

I agree. The Industrial Revolution was carried to England by the Huguenots after the revocation of the Edict of Nantes.

Michael K said...

"Lame duck presidents don't get to change the composition of the court.

Where's that in the Constitution?"

Ask Biden.

rcocean said...
This comment has been removed by the author.
J. Farmer said...

@Michael K:

"Ask Biden."

I'd disagree with him, too.

dreams said...

I hope the Republicans don't cave in but I don't have much confidence that they will stand firm.

Terry said...

J. Farmer said...
@Terry:

"Lame duck presidents don't get to change the composition of the court.

Where's that in the Constitution?

It's been decades since we paid attention to the constitution, J. Farmer.

Henry said...

Now would be the time for Trump to announce that Merrick Garland would be the kind of judge he would nominate himself.

Henry said...

How long could the Senate put off hearings? Could they keep the nomination in limbo until after the election? If Clinton wins, Garland would be a best-case nominee.

Michael K wrote: Only the Trump haters think this is a good pick.

He sounds to me like a Trump pick. Former prosecutor. Hard on crime. Soft on social issues. Like Trump.

Henry said...

Like Trump, but for the former prosecutor statement. Didn't mean to imply that.

dreams said...

"Now would be the time for Trump to announce that Merrick Garland would be the kind of judge he would nominate himself."

Why would Trump want to support Obama over the Senate Republicans? Why would he do that and risk losing votes?

Bay Area Guy said...

"Lame duck presidents don't get to change the composition of the court.

Where's that in the Constitution?"

It's not in the Constitution. Nobody is claiming it is.

jr565 said...

This might actually work for Repubs. its certainly going to be better than anything they might get when Hillary is the president.

dreams said...

"This might actually work for Repubs. its certainly going to be better than anything they might get when Hillary is the president."

So you think the Republicans should continue to preemptively surrender.

Henry said...

dreams wrote: Why would Trump want to support Obama over the Senate Republicans? Why would he do that and risk losing votes?

What has Trump done to upset the Republican Elites that has worked against him?

I am kidding. I don't expect Trump to do that. But it probably wouldn't work against him. As I wrote in my follow-up, Garland's hard-on-crime/soft-on-social-issues profile matches up pretty well with Trump's.

damikesc said...

So you think the Republicans should continue to preemptively surrender.

That seems to be the default Republican stance. It is why we have baseline budgeting in DC instead of zero-based budgeting

buwaya said...

Orrin Hatch is indeed one of those who define the Washington culture of corruption.
He is quite open about it.

http://www.washingtonexaminer.com/carney-how-hatch-forced-microsoft-to-play-k-streets-game/article/2500453

"If you want to get involved in business," Sen. Orrin Hatch warned technology companies at a conference in 2000, "you should get involved in politics."

This isn't the only time Hatch pretty much demanded bribery from Microsoft.

The Microsoft case is probably the main reason why Silicon Valley became such a player in politics, and why it is liberal politics - they are more dangerous, and its more urgent to keep them on side. It began as protection money, then turned into dealing in favors. Its probably why Bezos owns the Washington Post, why MSNBC exists, etc.

And as for this situation, yes I also suspect it was set up. Just because he is a Republican doesn't mean he is above cooperating in such games.

Yancey Ward said...

I must admit to being a bit surprised that Obama actually took the route I proposed for getting a nominee approved this Congress- picking someone who isn't a drop-dead liberal. I doubt Garland even gets a hearing, but he is someone that Obama would never have dreamed of elevating at the time of Kagan or Sotomayor. It is a good move on his part, and makes the Republican Senate's position less tenable by a good margin.

Yancey Ward said...

It is simple game theory- if you think Clinton is sure to win, Garland might be as good as it will ever get for conservatives because if Clinton does win, she is going to bring the Senate with her. Now the Senate Republicans (McConnell mostly and Sessions) are going to have to make the argument that they can get a true conservative nominee after November, and Trump is right now rubbing his hands with glee because the Party is going to have to come to him with hat in hand to support his candidacy. A brokered convention in which Trump is thrown overboard is almost 100% sure to result in a Clinton victory, and likely landslide.

holdfast said...

He voted to re-hear Heller at the DC Circuit Level (so they could overturn the decision of the three judge panel striking down the DC handgun ban). That's all I need to know.

If Hatch allows his confirmation I will write a big check to however primaries that addled git.

Gahrie said...

How long could the Senate put off hearings?

There are a dozen cases where the Senate completely ignored Supreme Court nominations, and never acted on the nomination in any way.

Sammy Finkelman said...

There's one big problem I see with Merrick Garland. He oversaw the prosecution of the Oklahoma bombing. What I don't know is what actual role he played in the case. He may have been a figurehead.

The theory of the prosecution was all wrong. It depicted Timothy Mcveigh as the leader, and not Terry Nichols (sine when does somebody recruit a follower much older than himself??) and claimed theer were no further conspirators. The other conspirators, of course, would have had connections to Terry Nichols, not Timothy McVeigh.

Sammy Finkelman said...

Garland was actually involved only in the beginning.

This is peculiar:

When people offered to turn over evidence voluntarily, he refused, taking the harder root of obtaining the proper subpoenas instead, because Merrick would take no chances that someone who murdered innocent Americans might go free on a technicality.

My question is, was any important evidence related to the Oklahoma bombing lost that way, that could lead to co-conspirators or was this just foolish? And my second question is, was this his own idea, or was he taking somebody else's advice?



Sammy Finkelman said...

Scotus blog, 2010:

http://www.scotusblog.com/2010/04/the-potential-nomination-of-merrick-garland/

Of the three principal candidates...Judge Garland would also likely have the most immediate influence on the Court. He is well known to the Justices and is likely the most respected by them collectively, particularly the more conservative Justices. The fact that Judge Garland is not only extremely intelligent and respectful but exceptionally careful and quite centrist would mean that his views would have particular salience with, among others, Justices Kennedy and Alito.

Sammy Finkelman said...

Certainly, to the extent that the President's goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.

The point is not that Judge Garland is conservative. None of the candidates under serious consideration is. Rather, there are gradations between the views of the three, and there are questions on which they would disagree. On a number of issues, particularly those related to criminal law, Judge Garland is the least likely to adopt a liberal position. There are, however, some potential counter-examples involving the First Amendment and environmental law.


buwaya said...

"The other conspirators, of course, would have had connections to Terry Nichols"

There are long standing suspicions of Muslim radical connections of Terry Nichols, such as with Ramzi Yousef or the 1993 WTC bombing and the Bojinka plot, and of course Khalid Sheikh Mohammed of 9/11.

buwaya said...

"On a number of issues, particularly those related to criminal law,"

This is the least relevant to the modern US problems with state power.

"There are, however, some potential counter-examples involving the First Amendment and environmental law. "

These however are critical matters and where state power is most expansive. In particular the power of the regulatory agencies and the ability of the state and its appurtenances to silence opposition.

Bruce Hayden said...

I think that the Republican response should be to just sit on the nomination until the election. If the Republicans lose the Senate, or, more critically, the Presidency, then bring his nomination to the floor, and vote him onto the Court. Otherwise, just let his nomination die with the Congress. There is probably no rule that nominations need to have hearings, and the Dems under Harry Reid gave up filibustering judicial nominations. He is likely much more moderate than we could expect from a President Hillary and a Dem Senate. Plus, his age is an added plus.

Rhythm and Balls said...

It's a political game...

Not one of his choosing.

Guildofcannonballs said...

"only an historically illiterate person could not see living in an Anglo-Protestant country has a huge benefit."

Interesting that you have a decent point but make it like someone who has never seen good points made goodwise nor good points made badwise; comparable* to a monkey typing Shakespear but the opposite.

*comparisons are made for this type of thing

1. "only" why? Name exceptions as if your intelligence were being judged only by your ability to do so. This will help unfuck you.

2. "historically" to you is different from the writers, the readers, and the users to manipulate according to theories such as the Grand March Through The Institutions and Washington and Apple Trees and Tip a Canoe and Tyler too and . . . but the concept of "historically" probably allies some of your neurosis from destructive to potentially un therefore maybe just forget you ever read this.

3. il·lit·er·ate
i(l)ˈlidərət/
adjective
1.
unable to read or write.
"his parents were illiterate"
synonyms: unable to read or write, unlettered
"an illiterate peasant"
noun
1.
a person who is unable to read or write.

So by using the phrase "historically illiterate" you are self-contradicting. It makes you feel original and intelligent yet inarguably pre-historic (frankly I like the term pre-history better) grunts and rudimentary arm movements conveyed much greater depths of clear significance. Unless you feel language is best used to disguise your thoughts rather than clearly convey them I consider the grunter/flailing arm messenger as more advanced than your used locution.

4. "person" limits you; what about A.I. scares you most? Or the collective works of groups of "persons" that, perhaps only in their minds, results from the ideas fomented, then labeled, that describe the term synergy?

5. "could" needs to be "would" to preclude your embarrassment.

6. "not" not.

7. "see" I'm greater than you could ever be, and I drink Brawndo. Electrolytes are minerals your (well, the) body needs to avoid cramps, fibromyalgia, and lumbago.

Guildofcannonballs said...

"There will be a big fight no matter what, because there is too much to be gained from using the confirmation as a political battlefield."

Was there a big fight? Compared to when? What fights were smaller than Kagan or Sotomayer for SCOTUS?

What was gained by the GOP for using the confirmation as a political battlefield, within the context of a "big fight" by the GOP (i.e. after the nominations went sailing on through they could be used in a political context but that isn't within the context of a predicted big fight during the confirmation process)?

mikee said...

I say hold hearings. Point out Garland's abysmal view of the 2nd Amendment. Vote him down in committee. Should take about 3 months.

Let Obama nominate another "moderate" who also would destroy the Bill of Rights. Hold hearings to demonstrate the moderate is actually an extremist anti-rights bigot. Vote him or her down in committee. Should take about 3 months.

The election occurs. Problem solved.