Faced with the herculean task of replacing the late Justice Antonin Scalia, President Obama played it safe.
U.S. Court of Appeals Judge Merrick Garland had been passed over for the Supreme Court twice before, and few expected the 63-year-old jurist would be the president’s choice this time, given the pressure from the left to add diversity to the bench.
Legal experts believe Garland’s 19 years on the federal bench, where he has cultivated ties to both parties, made him a more appealing choice for the administration than the other front-running candidates, D.C. Circuit Judge Sri Srinivasan and 9th Circuit Judge Paul Watford, who have served as judges for fewer than five years.
“He is a very experienced judge with a strong record and reputation,” Carl Tobias, a professor of the University of Richmond School of Law who tracks judicial nominations, wrote in an email, adding that Garland’s “greater experience” gave him an edge over Srinivasan, who is also well-liked by Republican senators.
In a Rose Garden ceremony Wednesday, Obama called Garland someone who is “widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence.”
“This is precisely the time when we should play it straight and treat the process of appointing a Supreme Court justice with the seriousness and care it deserves,” he said. “It’s supposed to be above politics.”
Obama’s choice may be a disappointment to some of his progressive allies. Srinivasan, a Hindu, would have been the first Indian-American to serve on the high court, while Watford’s nomination could have given the court two African-American justices for the first time in history.
But some court watchers said Obama was smart to focus on a nominee with experience.
“He didn’t try to score any political points by nominating a woman, a Hispanic, an African-American, an Asian-American. He just went for the guy who seemed to be the very, very most qualified,” Tom Goldstein, publisher of the widely read SCOTUSblog, said on MSNBC.
“He just put it out there and said, ‘I’ve done my job, you do yours,’ and doesn’t seem to be putting any kinds of political pressure on Senate Republicans beyond qualifications.”
The strategy appeared to pay early dividends Wednesday, with a handful of GOP senators saying they would be willing to meet with Garland.
The White House said Sen. Chuck GrassleyChuck GrassleyDem senator seeks more time for 'due diligence' on Sessions nomination Senate sets date for hearings on Sessions's attorney general nomination Mnuchin, Price meet with GOP senators MORE (R-Iowa), the chairman of the Senate Judiciary Committee, would huddle with Garland after the Senate’s two-week spring recess.
But a spokesman for the senator said plans weren’t set in stone.
Republicans had previously vowed not even to meet with the nominee, so the White House hopes the shift is a sign that public pressure could open the door to a hearing for Garland and a vote down the road.
Others floated the possibility that Garland could be confirmed in a lame-duck session of Congress after November’s elections.
The judge could be an appealing nominee for Republicans if the party loses its majority in the Senate or fails to win the White House: it’s possible Democratic front-runner Hillary ClintonHillary Rodham ClintonTrump must not pull a bait-and-switch on American workers Jewish groups divided over Hanukkah party at Trump hotel Colo. AG: Electoral College lawsuit could cause 'chaos' MORE could turn to a more liberal judge if she’s elected president.
Clinton could also name a younger nominee to the court, who could serve longer than Garland.
“If the election doesn’t go the way Republicans want it, there will be a lot of people open to that,” Sen. Jeff FlakeJeff FlakeSenators move to protect 'Dreamers' Reid bids farewell to the Senate Reid defends relationship with McConnell in farewell speech MORE (R-Ariz.) said Wednesday of lame-duck consideration.
“For those of us concerned about the direction of the court, and wanting at least the more centrist figure, between him and somebody that President Clinton might nominate, I think the choice is clear, in a lame duck.”
Hatch, a senior member of the Judiciary panel, for years has called Garland a qualified nominee. But he said his nomination to the Supreme Court shouldn’t be brought up in the current “toxic environment.”
Asked if he’s open to taking up a nomination in the lame-duck session, the Utah Republican said, “I’d probably be open to it.”
NPR reported earlier Wednesday that Republicans nudged Obama to pick Garland by sending a back-channel message that they would confirm him in the lame-duck session if Democrats win the presidency. Hatch disputed that report.
White House press secretary Josh Earnest on Wednesday said there is “no good reason” for the Senate to wait until December to confirm Garland. But he also made it clear the nomination has no expiration date.
“The president has put forward the individual that he believes is the best person in America to fill a vacancy on the Supreme Court,” the spokesman said.
Still, getting Garland confirmed remains a long shot.
GOP leaders on Wednesday stood by their pledge not to hold hearings or votes on his nomination, unmoved by the president’s pleas to focus on Garland’s qualifications.
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” Senate Majority Leader Mitch McConnellMitch McConnellRepublican wins La. Senate runoff in final 2016 race Heitkamp is Trump's top choice for Agriculture secretary: report Schumer calls for Senate probe into Russian interference MORE (R-Ky.) said in a floor speech.
Conservative groups have already homed in on Garland’s past decisions that were supportive of gun control, a divisive issue that will feature prominently in the coming debate over his qualifications.
But Garland may be better-suited than the other finalists to a scenario where Republicans block Obama’s nominee and, in the process, treat him as a “piñata,” as Sen. John CornynJohn CornynGOP senator: Russian hacking 'hardly news' Senators move to protect 'Dreamers' Democrats back down from shutdown threat MORE (R-Texas) has suggested.
If Garland becomes a sacrificial lamb, he can return to his perch as chief judge of the powerful D.C. Appeals Court while having the honor of having been nominated to the high court.
Meanwhile, up-and-coming judges such as Srinivasan or Watford could still be the nominees of future Democratic presidents.
Garland grew emotional during the announcement ceremony in the Rose Garden. His voice cracking, he called the nomination “the greatest honor of my life,” other than his wife agreeing to marry him.
But by selecting the centrist Garland instead of a progressive, the White House runs the risk of sapping enthusiasm from the liberal base ahead of November’s election.
“It’s deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court, and instead put forward a nominee seemingly designed to appease intransigent Republicans rather than inspire the grassroots he’ll need to get that nominee through the Senate gantlet,” Democracy for America Executive Director Charles Chamberlain said in a statement.
Goldstein predicted progressive groups will “fall in line” behind Obama, but suggested it will take some effort from the White House to get there.
“They’re not going to have nearly the energy they would if it had been someone who would create greater diversity on the Supreme Court, someone who is a recognized progressive,” he said.
Jordain Carney and Alexander Bolton contributed.