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  • Writer's pictureMario Nicolais

Garland nixed before ever nominated

Harvard valedictorian. Brilliant. Chief Judge of the D.C Circuit Court of Appeals. Prosecutor in charge after the Oklahoma City bombing. A “judge’s judge.” All things that describe President Obama’s pick to fill the vacant seat on the United States Supreme Court, Merrick Garland.

And then there are a couple of things that describe what he is not.

He is not Antonin Scalia, the justice Judge Garland has been nominated to replace. He is not going to be confirmed by the U.S. Senate. And he is not going to be the next Supreme Court justice.

Judge Garland got nixed before he was ever nominated.

For all his qualifications, and a lifetime spent in public service, simply being nominated will likely be the peak of Judge Garland’s career. Because like it or not, his nomination is nothing more than a chess move – or if you read my last column, a poker play – in the political brawl between a liberal president and a conservative senate.

Sorry if it seems so anti-climactic.

But there it is. The political circumstances in which his nomination falls is so hostile that nothing else will matter. The strife and animosity on both sides dictate that nothing can overcome the corrosive environment. Not competency, not brilliance, not a checkmark next to every qualification a neutral would want in a judge. No, Judge Garland is doomed to be collateral damage caught between the lines of election year trenches.

President Obama is in the twilight of his presidency. After almost eight years, he would certainly like nothing more than to leave a legacy on the Supreme Court. Given the current 4-to-4 liberal-to-conservative split on the bench, that legacy would be great indeed. Maybe more important and more lasting than even his signature legislation, the Affordable Care Act/Obamacare. Given his druthers, he would break the tie with a titan from the liberal left, the next Earl Warren or Thurgood Marshall. However, the President is also a pragmatist and understands political realities better than almost anyone else; he did, after all, win two elections. He understands that despite his position and power, such an outcome is beyond his grasp.

Standing athwart President Obama, the Republican-controlled Senate is steadfast in its opposition. Time and again Republican senators have decried hearings, much less a vote, on any nominee named before the next president takes office. Their bulwarks have been set in form by several motivating factors. First, given the court’s current makeup, filling the seat of a conservative lion such as Antonin Scalia with anything less than a stalwart adherent to originalism would be a defeat in itself. Any milquetoast, compromise nominee becomes a non-starter. That leads to the second factor: the grassroots right would be up in arms with leadership that caved in to such a nominee, especially one with a history of opposing gun rights. No matter how strategic or logical such a deal may be, it cannot be sold to the very loud, very influential principle-over-policy activists within the party. After years fighting that battle, most senators have found it easier to accept the policy outcomes than the recriminations of the base. Finally, if a Republican emerges victorious in November, the dream scenario of maintaining a 5-4 advantage becomes a reality. Their hope is to hold on until then.

And that is where Judge Garland comes back into the story.

Of the experience he boasts, maybe none is more important to President Obama than his prior nomination process to the D.C. Circuit Court of Appeals. He has been through this before. Not just the nomination and senate hearings, but a protracted battle. Nominated by President Bill Clinton in 1995, he was not seated until 1997 after being re-nominated by a newly re-elected President Clinton.

Sitting through day after day of media spotlight and political maneuvering, Judge Garland knows how to wait without causing a stir. And for President Obama, that is the perfect nominee. He knows that he will not get any nominee confirmed, much less the one he truly wants. It appears the next best thing will be to make Republicans pay for stealing that opportunity.

While Republicans refuse engage in hearings, President Obama and Democrats will attack their “obstructionism.” It will become a rallying cry on the campaign trail. And it is a powerful theme. Just ask former Senate Majority Leader Tom Daschle who lost his 2004 re-election based in large part on those same charges. Indeed, Democrats will hope it is enough to not only win the White House, but flip control of the U.S. Senate. And there best weapon will be the resumé of the “eminently qualified” Judge Garland.

It is a shame that is all Judge Garland’s resumé will be used for in the end.

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