President Obama nominated Merrick Garland to the Supreme Court in likely response to the Republican position to deny any nominee a hearing or vote. Garland is a hard choice for Republicans to deny as he is a moderate choice who may lean conservative on some issues. He was confirmed on the D.C. Circuit Court of Appeals with only 23 Republican senators opposing. Republicans had little to say against Garland’s qualifications. The votes against him were geared towards whether additional seats were needed on the District of Columbia court of Appeals. President Obama is playing a game of chess with Republicans in much the same way, Republicans did in nominating Clarence Thomas to fill Justice Thurgood Marshall’s seat.
President George H. Bush nominated Clarence Thomas in 1992 to fill the seat of retiring Justice Thurgood Marshall. Marshall, the first African American justice to sit on the Supreme Court was known as the champion of civil rights causes—having won the landmark case of Brown versus Board of Election and ruled favorably on many civil rights cases. Marshall sat on the court from October, 1967 until October 1991.
On Justice Marshall’s retirement, many Democrats and minorities wanted an African American to fill his vacating seat. Hence President Bush selected an African American named Clarence Thomas. Thomas’ appointment was a political move based on what was perceived to be the request by many minorities. Of course, in light of the Anita Hill hearings then and subsequent rulings since then, Clarence Thomas sided with Justice Antonin Scalia and the conservatives on all issues, including civil rights. To say that Thomas is the antitheses to Thurgood Marshall would be an understatement. It was almost as if the Republicans dared the Democrats to deny an African American male to seat the vacancy of Justice Marshall.
And in 2016, President Obama is playing a similar political game in nominating Merrick Garland to replace Justice Scalia. President Obama, in lieu of making the bold move, to nominate an African American woman, chose instead to nominate someone that the GOP might be proud to confirm, under any other circumstances. Except this year, the GOP wants to deny President Obama the Constitutional right to nominate and have hearings held on his Supreme Court nominee. Republicans instead assert that in an election year, the next president should make the nomination. Despite having no legal authority whatsoever for this proposition, they are using it. And in reverse, President Obama is playing into their game. Perhaps, without the Republican blockade, Merrick Garland would not have ever been nominated. Under different circumstances, maybe President Obama would have nominated an African American woman.
It is actually the Republicans that are in a win-win situation with Garland as the pick. If the Republicans lose the election, they will likely change positions and Garland will be confirmed—for fear that the presumed Democratic winner will nominate a worse choice—a progressive. And if Republicans win in November, they can either nominate Garland or someone far worse.
But in nominating Garland to appease Republicans, the Supreme Court could be getting a companion for Clarence Thomas. While the Clarence Thomas nomination did not backfire on the Republicans and was a slap in the face to many women and African Americans, the Garland nomination could backfire against women and African Americans.
Merrick Garland is not a conservative but on some issues, he is far from being progressive. On issues such as reproductive rights and abortion, no one knows his views. On the issue of criminal law, Garland might likely side with conservatives on some issues, as he has done in the past. As a sitting federal judge, he rarely voted in favor of criminal defendants’ appeals. Tom Goldstein of the SCOTUS Blog writes that Garland disagreed with his more-liberal colleagues on ten cases and adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. This is rare for the D.C. Circuit. Goldman also notes that Garland has not had to decide many civil rights cases, so his views are not known in such another important area, affecting minorities.
In the end game, President Obama should have nominated someone without giving any deference to the Republicans. Instead, he gave the GOP’s position weight and merit. And it neither deserved weight or any merit. In nominating Garland, if confirmed, we may see the court swing to the right with Garland siding with Thomas and other conservatives on important issues affecting women’s rights, criminal law and civil rights. Progressives, minorities and women should be wary of Merrick Garland.
President Obama had the unusual position of being able to nominate three Supreme Court justices in two terms. This last time, he chose to take the path of less resistance. He caved to the obstructionism of the Republicans. I wish President Obama had taken the bold path and nominated a progressive African American woman to sit on the Supreme Court. He had plenty of qualified choices from which to choose. He instead decided to nominate a potential Clarence Thomas supporter.
Washington, DC based Debbie Hines is a trial lawyer, Supreme Court bar member, legal analyst and former prosecutor. She is frequently seen on Al Jazeera America, BET, CBS News, MSNBC, PBS, Sky News and TV One among others.