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Obama Taps Merrick Garland for Supreme Court

Chicago-born jurist has been considered twice before

Garland has had an uncontroversial tenure on the D.C. Circuit, where he is now chief judge, and was also a finalist in 2010 when Obama appointed Elena Kagan to the high court. Robin Reid Photography for the U.S. Court of Appeals)
Garland has had an uncontroversial tenure on the D.C. Circuit, where he is now chief judge, and was also a finalist in 2010 when Obama appointed Elena Kagan to the high court. Robin Reid Photography for the U.S. Court of Appeals)

President Barack Obama on Tuesday nominated U.S. District Court of Appeals Chief Judge Merrick Garland to the Supreme Court, calling him a “serious man and an exemplary judge” who should appeal to Republicans and Democrats alike.  

Obama searched for more than a month before selecting Garland to fill the seat of Antonin Scalia, the consistently conservative justice who died Feb. 13 after nearly 30 years on the high court.  

In picking Garland, the president chose an experienced jurist known for his even-keeled demeanor. The Chicago-born, Harvard Law School graduate has two decades of experience on the U.S. Court of Appeals for the D.C. Circuit, and garnered bipartisan support during his confirmation to that court in 1997. Garland is also the oldest, at 63, of Obama’s reported finalists.  

“I am grateful beyond words for the honor you have bestowed on me,” Garland said, turning to Obama at the Rose Garden ceremony.  

The mid-March sun shone in Obama’s eyes as he squinted a bit while announcing his decision. Garland stood off Obama’s left shoulder, hands clasped in front of him. Vice President Biden stood to Obama’s right.  

The president urged Congress to “play it straight” on this nomination and confirm Merrick, despite the partisan divide that permeates much of the Senate’s business.  

But even before the announcement, The White House was turning up the heat on Senate Judiciary Republicans, noting Sen. Orrin Hatch said of Garland in 2010 he would be a “consensus nominee.” The official also pointed to this Hatch quote at the time: “I have no doubts that Garland would get a lot of [Senate] votes. And I will do my best to help him get them.”

Sen. Orrin G. Hatch, a former Judiciary Committee chairman, told reporters the Garland selection did not change his view that a nomination should not be considered until 2017.

“This is a poisonous atmosphere here, and I just think that it should be put off,” the Utah Republican said, also that it had been many years since Garland was last considered by the Senate.

Garland has had an uncontroversial tenure on the D.C. Circuit, where he is now chief judge, and was also a finalist in 2010 when Obama appointed Elena Kagan to the high court. But his nomination is somewhat of a surprise, since presidents often look to younger nominees to ensure longer tenures on the court.

The selection of Garland also lacks some of the political upsides of picking a woman or minority, as some progressive groups had hoped, and does not change the court’s academic or religious makeup.  

Obama said in a statement earlier Wednesday prior to the Rose Garden announcement that he picked someone who is “eminently qualified” for the high court with intellect, impartiality and something he describes as life experience for cases where the law is not clear.  

“It’s the kind of life experience earned outside classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times,” Obama wrote in an email.  

Obama said that in his view “that’s an essential element for arriving at just decisions and fair outcomes.”  

But Garland’s path to the court first goes through a Senate in which Republicans have pledged not to give him a hearing, saying the nomination should be left to the next president elected in November. The stakes are hard to overstate and aren’t lost on the senators set to battle over the nomination.  

Obama reiterated that his nominee deserves a fair confirmation hearing in the Senate and an up-or-down vote.  

Replacing Scalia with Garland would likely swing the ideological balance of the court leftward as it considers issues such as state abortion laws and potentially gun rights cases.  A third appointment to the Supreme Court could also be an enduring legacy for Obama and possibly help protect actions such as his signature health care law (PL 111-148 , PL 111-152 ) and environmental regulations.  

Garland typically would be considered a consensus candidate, one who garnered support from both Democrats and Republicans when the Senate confirmed him to the appeals court on a 76-23 vote in 1997. He became chief judge of the D.C. Circuit in 2013.  

When a Supreme Court vacancy opened in 2010, Sen. Orrin G. Hatch , R-Utah, said he would back Garland for the high court, saying: “I have no doubts that Garland would get a lot of votes.”  

But the situation in the Senate is anything but typical, even for a chamber where partisan bickering is the norm. Majority Leader Mitch McConnell , R-Ky., said just hours after Scalia’s death that the Senate would not confirm anyone Obama nominated during this presidential election year.  

Despite steady criticism from Democrats about the GOP’s stance, the chance of confirmation hearings seems slim. Republicans hold all the power to move the nomination and show few signs of cracking. The 11 GOP members of the Senate Judiciary Committee signed a letter stating that they will not hold hearings on a nominee until the next president takes office on Jan. 20, 2017.  

McConnell said he saw no point in meeting with a nominee, which is a customary courtesy in the tradition-bound Senate. And Majority Whip John Cornyn , R-Texas, suggested an even less welcome fate. He told reporters any nominee’s reputation could be at risk and the pick “will bear some resemblance to a piñata.”  

Republicans and Democrats alike will be using the process to rally voters in the eight months until Election Day.  

With 44 Democrats in the Senate, and two independents who usually side with Democrats, the White House needs a nominee who can get the support of at least 14 Republicans to overcome a filibuster and allow a floor vote. A simple majority of 51 votes would then be needed for confirmation.  

In making the nomination, Obama had to balance the usual concerns about personal and professional background with the possibility that Republicans would block anyone he picked.  

The choice of Garland signals Obama’s intention to ratchet up pressure on Senate Republicans with a nominee without clear reasons to oppose him. Democrats could paint them as obstructionist and pressure those GOP senators seeking re-election, especially in battleground states such as Ohio and New Hampshire.  

Garland is also a nominee Republicans could confirm late in the year if a Democrat looks headed to the White House and the GOP appears on course to losing control of the Senate. The thinking would be that Garland is preferable to a more liberal nominee that might follow.  

Short of that late-in-the-year scenario, however, it’s hard to see Republicans angering their base by giving Obama a third justice on the high court.  

With Garland, the White House opted to avoid a more liberal pick that could have better rallied progressive interest groups and Democratic voters in Senate races.  

Obama also passed on nominating Jane L. Kelly, an appeals court judge from Iowa, in what could have been a bid to have an unprecedented four women serving on the court at the same time. He also did not pick Sri Srinivasan, who serves with Garland on the D.C. Circuit, who could have been the first Asian-American justice.  

Garland is considered a centrist and a fixture in Washington legal circles. He clerked for Supreme Court Justice William Brennan in 1978-79 and worked in the Justice Department in the Carter, George H.W. Bush and Clinton administrations. As principal deputy attorney general starting in 1994, he led investigations into the Oklahoma City bombing and the Unabomber, Ted Kaczynski.

Concerns on Gun Rights

Garland’s long tenure on the bench will give opponents plenty of material to search through for concerns.  One conservative legal advocacy group has already raised gun rights as an issue. Garland “would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms,” wrote Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.  

Before making his decision, Obama spoke with senators, inviting McConnell and Senate Judiciary Chairman Charles E. Grassley , R-Iowa, to the White House, along with Minority Leader Harry Reid of Nevada and Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the committee. Obama also met with the Judiciary Committee Democrats.  

White House spokesman Josh Earnest said those meetings “should underscore for you the priority that the president places on consulting with the Senate  . . .  and the president believes that these kinds of conversations in advance of choosing a nominee are consistent with the expectations of the American people and of the United States Constitution.”  

Niels Lesniewski and John T. Bennett contributed to this report.  


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