President Obama Prefers the High Ground

I certainly would have liked to see a Supreme Court nominee who is not another white male. It is also of note that Merrick Garland is 63 years old and is considered by many to be a "centrist" judge.

But from everything I hear, it sounds like he is extremely well-liked and respected by people who know him and have argued cases before him. That sounds like the quintessential kind of pick for President Obama...a lawyer's lawyer. Anyone who has watched this President over the years will recognize this kind of analysis of what Garland would bring to the Supreme Court.

On a circuit court known for strong-minded judges on both ends of the spectrum, Judge Garland has earned a track record of building consensus as a thoughtful, fair-minded judge who follows the law. He’s shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions.

And this record on the bench speaks, I believe, to Judge Garland’s fundamental temperament -- his insistence that all views deserve a respectful hearing. His habit, to borrow a phrase from former Justice John Paul Stevens, “of understanding before disagreeing,” and then disagreeing without being disagreeable. It speaks to his ability to persuade, to respond to the concerns of others with sound arguments and airtight logic. As his former colleague on the D.C. Circuit, and our current Chief Justice of the Supreme Court, John Roberts, once said, “Any time Judge Garland disagrees, you know you’re in a difficult area.”

On the idea of Garland being a "moderate," Sarah Almukhtar has an interesting chart on the ideological make-up of the Court which places him just to the left of Justice Elena Kagan and barely to the right of Justice Ruth Bader Ginsburg. But regardless of the accuracy of her methods, if confirmed, Garland would significantly affect the ideological leanings of this Supreme Court.

It might be that Garland's age is what made him say "yes" to entering into the fray the Republicans have created with this nomination process. Younger potential nominees might have been smart to wait this one out and keep their options open for the future. Garland can retain his seat on the District Court while this all plays out and is not likely to get another shot at a Supreme Court nomination.

There are some on the left who are expressing disappointment that President Obama didn't chose a nominee with a more progressive legal record. But those folks don't understand this President's commitment to pragmatism as a strategy. For those who prefer battle analogies, he prefers to defend the high ground.

A few weeks ago I referred to an essay then-Senator Barack Obama wrote back in 2005 about the nomination of John Roberts. In it, he explained the importance of maintaining the high ground.

How can we ask Republican senators to resist pressure from their right wing and vote against flawed appointees like John Bolton, if we engage in similar rhetoric against Democrats who dissent from our own party line? How can we expect Republican moderates who are concerned about the nation's fiscal meltdown to ignore Grover Norquist's threats if we make similar threats to those who buck our party orthodoxy?

I am not drawing a facile equivalence here between progressive advocacy groups and right-wing advocacy groups. The consequences of their ideas are vastly different. Fighting on behalf of the poor and the vulnerable is not the same as fighting for homophobia and Halliburton. But to the degree that we brook no dissent within the Democratic Party, and demand fealty to the one, "true" progressive vision for the country, we risk the very thoughtfulness and openness to new ideas that are required to move this country forward.

During his remarks this morning, President Obama acknowledged that Democrats haven't always maintained the high ground during Supreme Court nominations.

I know that Republicans will point to Democrats who’ve made it hard for Republican Presidents to get their nominees confirmed. And they’re not wrong about that. There’s been politics involved in nominations in the past.

Beyond those arguments, it is interesting to note that maintaining the high ground is also a powerful political move. Over the years I've become fond of calling it "conciliatory rhetoric as a ruthless strategy."

To demonstrate how that works, notice this from the President in his remarks today.

Republican Senator Orrin Hatch, who was then chairman of the Senate Judiciary Committee, supported his nomination. Back then, he said, “In all honesty, I would like to see one person come to this floor and say one reason why Merrick Garland does not deserve this position.” He actually accused fellow Senate Republicans trying to obstruct Merrick’s confirmation of “playing politics with judges.” And he has since said that Judge Garland would be a “consensus nominee” for the Supreme Court who “would be very well supported by all sides,” and there would be “no question” Merrick would be confirmed with bipartisan support.

In addition to that, Josh Israel has compiled: 6 Quotes From Senate Republicans About Merrick Garland That Are Really Awkward Now. By taking the high ground, President Obama has given Senate Republicans two choices: (1) confirm his nominee, or (2) put their extremism on display in a way that is obvious for everyone to see. In other words, no matter what they chose, he wins. That is the essence of conciliatory rhetoric as a ruthless strategy.

Far be it from me to suggest that Obama is responsible for the choices Republicans have made over the years. But the fact that they are so far off the scales of extremism during his presidency is not necessarily an accident of fate. Liberals might not always agree with President Obama's strategy, but he is one smart player. And this is the essence of how he does it.