The blog in a nutshell

The blog in a nutshell

Wednesday, March 16, 2016

Merrick Garland qua settlement proposal

Merrick Garland is likely a moderate Democratic nominee, who, at 63, will have a term that is likely decades shorter than other potential choices.  He may even be to the right of Scalia on some criminal justice issues.  He certainly is not the pick of a Democratic President with the advantage of a Democratic Senate.  He is likely not even the type of pick a new Democratic President would pick if the Republican party maintained control of the Senate.

He is, thus, a settlement offer.  Take this now, or risk a younger and more liberal choice later.

But, like all settlement proposals, it is clear there must be a time limit on the GOP's ability to accept.  In this case, there must be some point at which Obama will withdraw the nomination.  And that point should be explicitly tied to the odds of the Democratic nominee (likely Clinton) winning the nomination.  


First, let's put aside the not-believable notion that the GOP is refusing to hold a hearing out a matter of principle, and that they would do so even if Scalia had handpicked his successor.  The reason the GOP is refusing to hold hearings is not out of any constitutional principle, even as there is no hard constitutional rule that requires them to hold hearings.  This is merely politics, albiet one that mildly upsets the norms upon which the effectiveness and legitimacy of the Constitutional system are founded.  It is, what Professor Tushnet calls, "Constitutional Hardball."

Now, in an ordinary settlement proposal, there are actual or implied time limits for a reason.  If one could extend a settlement proposal forever, there is no reason to take the offer until the judgment is effectively final anyway.  If the settlement is more favorable than the judgment, then and only then would you take it.

In civil litigation, this means that settlement can and does frequently happen right up until the eve a result becomes relatively certain, such as a motion on summary judgment or a verdict.  (Often, settlement happens on the verge of trial, but this is only because of the expense of trial itself.)  But in those cases, there's a good deal of uncertainty right up until the moment the result comes out.  And, at that moment, the offer vanishes.

In Presidential elections, it is quite different.  By the time the new President is sworn in, election day has been over for months.  Even on Election Day, polling has made the vast majority of elections foregone conclusions.  Other than the most hardened partisan, most people knew the outcome of the 2012, 2008, 1996, 1992, 1988, 1984, 1980, 1976, 1972, 1968, and 1964 elections before the voting began in earnest.  The only two exceptions since 1960 were, then, 2000 - in which we weren't sure of the next President even after Election Day, and 2004, in which the markets predicted a George Bush election, but without certainty, and the end result was relatively close.

2016 is even less likely than the typical election to be close.  Feelings about the likely Democratic nominee are mostly polarizing and well known.  Meanwhile the Republicans are set to either nominate an incredibly polarizing figure in Donald Trump, or a very conservative figure in Ted Cruz.  Both are likely to lose, and both are likely to result in very little fluidity in polling.   In other words, we should have a good handle on who the presumptive President is by the end of the last debate, where hard polling is likely to be quite predictive.  Indeed, we'll have a pretty good idea of who will be President in the first rounds of polling after the conventions.

And there's another "decision point" for the GOP even earlier.  As soon as the identity of the GOP nominee is decided, whether at the convention or otherwise, the stakes change for a different reason as well.  This is because, while Ted Cruz (or Kasich or a "savior" candidate such as Mitt Romney or Paul Ryan) are likely to nominate a reliable conservative to the Supreme Court, Trump is a bit of a wild card.  His populist politics and his love of theatrics may make a nomination of his 78 year old politically liberal sister, an oddball nominee such as Judge Judy, a moderate such as Brian Sandoval, a fundamentalist populist such as Roy Moore, and a standard conservative such as Diane Sykes or Bill Pryor equally likely.  Some of these outcomes might be less preferable to a 63 year old Garland.

If Obama allows the nomination to sit, it might get taken up at a point in which the realistic choice for the GOP is between Garland or a less palatable choice.  At that point, Obama may not want Garland to be up for consideration.  Settling for Garland now makes sense; settling for him with Nina Pillard waiting in the wings does not.  In order to make Obama's compromise offer a true compromise offer, and in order to give it the best chance to be considered now, Obama must make clear that it has an expiration date.  And he should coordinate with the Clinton campaign as to when that expiration date is.

UPDATE:  This should come to no surprise.  "Hey, we agree to accept your settlement if we lose"  This obviously should be responded to with a snort and a no.  Unfortunately, Obama seems open to the idea.  If so, Democrats--and, in particular, Hillary Clinton herself--should pressure Obama to make this a limited-time offer.  It may be the only hope Garland has to be confirmed before November; and if Clinton calls on Democratic Senators not to confirm Garland in a lame-duck session, it might be Garland's only hope of being confirmed at all.


  1. I don't necessarily disagree with anything you've said, but I think it equally likely that Garland would have been a top contender for the appointment even if Obama had been working with a Democratic Senate. To the extent that Garland was constrained by precedent as an appellate judge, he may have been able to convince Obama of his "true colors" in a one-on-one. Plus his reputation as a judge's judge who focuses on process and consistency will appeal to "Don't Do Stupid Shit*" No-Drama Obama the Vulcan.

    *I know, foreign policy doctrine, but it's applicable to almost any policy area.

    1. As someone with some familiarity with the Court, I think that's unlikely. Garland is pretty conservative, but more to the point, he's pretty old for a nominee. By nominating someone at 63 instead of 48, he's giving up 15 years of legacy. Even if he wanted a moderate (which I'm not sure I buy), there was Sri and Kelly.

      But even if this is correct, I would hope and think Clinton would nix it, pressuring both him and Democratic Senators to withdraw the pick as soon as she's wrapped up the election. And at that point, I suspect Obama will oblige.

    2. (I said conservative, but I meant moderate. And he's moderate on a number of issues that Obama appears to care very much about, most notably criminal justice reform.)

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