One of the biggest winners Tuesday wasn’t even on the ballot.
Senate Majority Leader Mitch McConnell can do a victory lap now for his success in keeping President Barack Obama from shifting the ideological balance of the Supreme Court.
Democrats, meanwhile, have to ask whether Obama’s nomination of Merrick Garland, a 63-year-old moderate, was a mistake. Some progressives hoped for a younger candidate, with a more diverse background, might have better excited liberals.
It was McConnell who seized the moment after the death of Scalia last February to announce there would be no confirmation hearings until after the election. “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” he said at the time.
There’s no way of knowing if McConnell was certain a Republican would win. But it was worth a shot for the veteran senator. He held to his promise and denied Obama’s pick, federal appeals court Judge Merrick Garland, a hearing or vote. And now, he has likely ensured a conservative majority on the Supreme Court for years to come.
“Thank you, Majority Leader McConnell,” raved Carrie Severino, who runs the conservative Judicial Crisis Network. In a statement she reiterated that the “people deserved to be heard” and added that “a sizable majority of voters named lifetime appointments to the Supreme Court as one of the most important factors in their voting decision.”
Indeed, national exit polls reflect that 21% of voters said the Supreme Court was a major factor in how they voted.
“Merrick Garland is a fine man and a dedicated public servant,” said John G. Malcolm of the Heritage Foundation. “But there is no question Hillary Clinton said that she was looking for a judge who would favor a little guy over a corporation, a minority over a non-minority. She was looking for a judge that would put a thumb on the scale rather than dispense equal justice under the law,” he said.
When progressives recover from the shock of their loss, they are sure to reexamine what they might have done differently.
Did the President, for example, miscalculate when he chose Garland?
Obama admitted openly that Garland was a consensus candidate. The President wanted someone Senate Republicans couldn’t refuse.
And on paper, Garland was exactly that. His credentials are impeccable and he’s a powerful thinker. His admirers are legion, and include conservatives like Utah Sen. Orrin Hatch. Garland showed his personal side at an emotional Rose Garden ceremony, allowing Americans to get a glimpse of his character off the bench.
“Merrick Garland is an extraordinary jurist who is indisputably qualified to serve on the highest court of the land– nobody really argues otherwise,” Obama told an audience in Chicago last spring.
Obama press secretary Josh Earnest Wednesday said the White House’s view of the nomination hasn’t changed. “It’s deeply discouraging how unfairly he has been treated by Republicans in the United States Senate who abdicated their responsibility to give him a hearing and a timely vote,” Earnest said.
And progressives, early on, worked in various publicity campaigns to insist #WeNeedNine. But as the Republican recalcitrance solidified, the progressive effort went dormant over the summer months.
Indeed, despite the extraordinary impact the election would have on the Supreme Court, Garland’s name rarely came up on the campaign trail.
A 60-something white jurist who attended Harvard College and Harvard Law School didn’t excite the base in the same way, perhaps, another candidate might have. Some yearned for a nominee who had lived life outside the judicial monastery. Or even attended a school not affiliated with the Ivy League.
Some Democrats hoped for an African-American candidate. Someone like Judge Ketanji Brown Jackson of the US District Court for the District of Columbia. Or Judge Paul Watford of the United States Court of Appeals for the Ninth Circuit. Others pushed for Judge Sri Srinivasan who would have been the first Indian-American to take the Supreme Court bench.
Lately, even the justices have spoken openly about their desire for a more diverse judiciary.
“The greater variety of people you have serving, the more likely that every side of every issue will be engaged and will be thought about,” Justice Sonia Sotomayor — the court’s first Latina — told an audience at the University of Wisconsin Law School earlier this year. She was talking generally about diversity, not responding to the Garland nomination. “The more diversity in professional experience and life experience that people have, the more fulsome the conversation will be about the law, ” she said.
But at the end of the day, once the Republican strategy jelled, it’s likely the senators would have been able to fight back a non consensus candidate as well. Who the candidate was, probably wouldn’t have made much of a difference.
Indeed, had Obama swung for the rafters with a more liberal nominee, he might have had even less of a chance.
He picked a nominee who would likely have been a top option for Hillary Clinton. But the election changed all that.
