Merrick Garland

Today, President Obama nominated Merrick Garland, a Jewish judge on the DC Circuit Court of Appeals. Garland appears to only be Jewish by his mother, as his father is some sort of Christian, unless he had converted. If confirmed, Garland would join Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan to become the fourth justice of Jewish descent on the Court. Garland was nominated to the Court of Appeals in 1997 by President Bill Clinton, and was tapped as a potential nominee when John Paul Stevens retired. Kagan ultimately was chosen.

Senate Republicans have said since the vacancy that they would not consent to any nomination, preferring to gamble on taking back the White House. Democrats have tried to shame Republicans by claiming this is unconstitutional, but that is incorrect. The president has every right to make a nomination, but is not even required to. The Court could stay at eight members. Correspondingly, the Senate has the right to deny its consent to any appointment as it has over the centuries.

Garland is 63 years of age, which signals a very tactical move by Obama, essentially an offer of compromise to Republican senators since the nominee would likely only be in office for about twenty years. Alternatives like Sri Srinivasan are younger and would potentially affect the court for more than a generation. And if a Democrat takes the White House next year, they can then claim a mandate and go hard left, especially if the Senate flips back to the Democrats. For all that can be said about Obama, this was a very presidential move.

The nominee is well-regarded and would likely serve as a centrist/liberal between Breyer and Kennedy. He would replace the latter as the tie breaker, putting a liberal swing on more decisions than Kennedy. He certainly would be better than other nominees from Obama, but is a good hedge if a Democrat wins the White House next year. Nevertheless, Republicans are probably right to roll the dice with Hillary Clinton moving towards the presumptive nominee and Donald Trump, Ted Cruz, or a dark horse like Paul Ryan on the other team. There is growing potential for Clinton to be indicted, ending her campaign. Bernie Sanders would receive tepid support from the Democrat establishment. The only game changer would be if Joe Biden is pulled out of the ether as a benchwarmer.

While Trump is currently polling badly against Clinton, that is mainly because neither nomination is settled and the race has not begun. Over a quarter of typical Republican voters are hesitant to back Trump in the general, but I suspect they will when faced with President Hillary Clinton. Indeed, a good friend of mine who was a diehard Rubio supporter said to me last night that Trump was the most reasonable of the three remaining after repeatedly attacking him with vehemence. Trump stands to sweep the nation in a way not seen since Reagan. He is extremely popular among New Yorkers upstate and on Long Island, which could flip a state that was seen as solid blue since 1988 (when it went for Dukakis). Trump has a wide window of potential once the nomination settles in, which would coattail a lot of Senators into easy reelections or elections. This potential, along with other possibilities, means Republicans would be wise to punt.