Home » Advice & Consent 01: It’s Merrick Garland and McConnell’s gonna McConnell

Advice & Consent 01: It’s Merrick Garland and McConnell’s gonna McConnell

It’s nomination season, so the ragtag gang of the usual suspects returns with a new podcast: Advice & Consent. For those that followed the Roberts and Alito nominations about a decade ago, you may remember the Supreme Court Watch podcast. This show is much in the same vein, although it’s independent of any organization or entity. We come at things from a progressive/liberal point of view but we’re also committed to having a skeptic’s eye for everything in the process.

Canvassing the Reactions & Spins

  • Professional Court WatchersGreenhouse – Bring it on, Bork-styleLithwick et al in Slate: The White HouseLiberalsBernie supportersNOWBlack Women’s Roundtable

Republican LeadersElectorally Vulnerable Republican Senators

Thoughts on where we are right now.

  • Is this really a stalemate? A doomed nomination?
  • What is the Biden Rule? Is it really a rule or some made up nonsense? ACS: THERE IS NO BIDEN RULE 
  • Is CJ Merrick Garland a “disappointing” nominee for progressives?

The Chatter

NYT: A New Bork Battle?The president might even say: Remember Robert Bork? Treat my nominee in the same way. Have a conversation and let the public in on it. Of course the president and his allies know that’s exactly the public conversation that the Republicans fear, because it was clear from the first moment that any Obama nominee would inhabit the constitutional mainstream much more securely than either Judge Bork or Justice Scalia — whose “originalist” philosophy never gained more than a toehold at the court — ever did.

NYT endorsement of the nominationIf you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland…Mr. Obama has picked a strong nominee, who won bipartisan support in his confirmation to the appeals court. If the Republicans refuse to accept him, they will face one of two scenarios: a nominee selected by Hillary Clinton, who may well be more liberal, or one chosen by President Donald Trump — a racist, vulgar demagogue who many Republicans have said is unfit to run the country.

NPR: Merrick Garland Has A Reputation Of Collegiality, Record Of Republican SupportGarland has a lengthy record on the D.C. circuit court, but that court deals mainly with regulatory issues and not hot-button social issues of the day, such as abortion and gay rights. That has served as a confirmation advantage for previous nominees from the appeals court, and it likely will for Garland, too.On the appeals court, Garland has been a moderate liberal, with a definite pro-prosecution bent in criminal cases. Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia.But Garland also has been a persuasive voice for liberals, managing to bring conservatives over to his side on issues ranging from the environment to national security. For example, in a case involving Chinese Uighurs detained at Guantanamo Bay, Cuba, Garland asked the Justice Department for the particulars of its evidence and then wrote an opinion for himself and two conservative judges that concluded that the Bush administration’s claim that they were enemy combatants was utterly unsupported by the evidence.

Rick Hasen at ElectionLawBlog: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.

Future episodes

  • First of all… they’ll be shorter and closer to “single topic” shows than this first episode monstrosity.
  • A deeper dive on Judge Garland’s record.
  • Are the Republicans at all correct with their stance on nominations at this time in a presidency (hint: no).
  • How much is the Court really going to change going from Justice Scalia to a Justice Garland?
  • A look back on Justice Scalia’s legacy.
  • Adam goes Rain Man on the Senate Rules.
  • In retrospect, did the Dems ever make a tactical error with past stances on nominations and the nuclear option?