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More Garland



I have thoughts at both The Guardian and The New Republic. I don’t precisely disagree with Brothers Campos and Pierce about the tactical rationale for picking Garland. (Although I am a little concerned about Paul’s GFII analogy, since Roth’s maneuvering ended up with him, Frankie Pentangeli, and Fredo all dead. Hopefully this doesn’t mean we’re in for 8 years of a Trump/Nugent administration…) And it’s hard to evaluate the choice because it’s hard to know who would be willing to serve as a “pinata” with no chance of actually being confirmed to the Supreme Court. But if he was willing, I would have preferred Watford. As usual, I don’t buy the Overton Window arguments against Garland, but I do put at least a little stock in the base mobilization arguments:

One potential problem is that appointing a moderate justice might make it harder for a future Democratic president to nominate a strong liberal by moving the political center of gravity to the center. However, although Garland is more moderate than Elena Kagan and Sonia Sotomayor, there isn’t much evidence that nominating a moderate begets more moderates. (Ronald Reagan followed Sandra Day O’Connor with Antonin Scalia; George H. W. Bush followed David Souter with Clarence Thomas.) If anything, Republican opposition to a moderate will give Hillary Clinton even less incentive to pick someone like Garland.

A second, more serious objection is that it’s very difficult to sell the public on abstract procedural arguments. That the Senate is obstructing Obama’s nominees likely won’t galvanize any specific constituency. Had Obama chosen a similarly well-qualified minority candidate, such as Judge Paul Watford of the Ninth Circuit Court of Appeals, it would be much easier to mobilize the Democratic base against McConnell’s obstructionist tactics. The politics of refusing to confirm an African-American or Hispanic judge with impeccable credentials would have been worse for Republicans, particularly given the race-baiting of Donald Trump, the current frontrunner for the Republican nomination.

The strongest argument in favor of nominating Watford is the fact that swing voters comprise an increasingly small percentage of the electorate. With every cycle, base mobilization becomes more important, and the ability of the Garland pick to mobilize Democratic supporters is probably limited. Nominating a more progressive (but still mainstream) minority candidate might have generated a little more base enthusiasm.

All this said, the Supreme Court has historically been a very marginal issue in presidential and Senate elections. It’s likely to be more salient this year, with a pivotal vacancy looming and a major abortion case scheduled to come down in the heat of the presidential campaign. But even if one believes that Watford would have been a better political choice, it’s a minor difference.

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