Magazine article The New Yorker

Court Politics

Magazine article The New Yorker

Court Politics

Article excerpt

COURT POLITICS

Presidents reveal themselves, and often replicate themselves, in the Justices they nominate to the Supreme Court. Harry Truman chose poker buddies from his days in the Senate (Sherman Minton, Fred Vinson). John F. Kennedy selected a glamorous former football star (Byron White). Richard Nixon's choices reflected the relative moderation of the Republican Party of his era (Warren Burger, Lewis Powell, Harry Blackmun, and the harder-edged William Rehnquist), while George W. Bush's selections showcased the modern, more conservative G.O.P. (John G. Roberts, Jr., Samuel A. Alito, Jr.). When Barack Obama nominated Merrick Garland, in a Rose Garden ceremony last week, he illuminated both the strengths and the limitations of his Presidency.

Like Obama's two previous nominees, Sonia Sotomayor and Elena Kagan, Garland possesses impeccable, and very traditional, qualifications for the job. Like Kagan (and like Obama), Garland graduated from Harvard Law School. (Sotomayor went to Yale.) Also like Kagan, Garland clerked on the Supreme Court, in his case for William J. Brennan, Jr. Like Sotomayor, Garland has had a long and admirable career as a federal appeals-court judge of the District of Columbia Circuit--as the chief judge for the past three years. The President's nominees, all fine choices, reflect his boundless faith in the meritocracy. Obama appears to believe that any problem can be solved, and any mission accomplished, by intelligent people working together for a solution.

The Garland nomination also revealed the President's distaste for the vulgar realities of politics. A Supreme Court vacancy gave Obama a chance to inject himself into this year's elections on his own terms. He could have chosen a nominee who would rally his core supporters, and thus assist his party in races up and down the ballot. The Administration's short list for the nomination reportedly included several respected appellate-court judges who might have had considerable popular appeal; there was a woman (Jane Kelly), an African-American (Paul Watford), and a member of a small but growing immigrant group (Sri Srinivasan, an Indian-American). But this President prefers technocrats to Democrats. It is true, at some level, that good policy is good politics; but good politics is also good politics. The underlying political rationale for the Garland nomination appears to be that if this sober and reasonable choice is right for the President it will be right for his party as well.

But that hasn't actually been the case during the Obama years. It may be churlish to question the political acumen of the first African-American to be elected (and reelected) President, but it is true that Obama's tenure has been disastrous for Democrats. The Party has gone from a Senate caucus of sixty members to forty-six, and from a substantial majority in the House of Representatives to a seemingly permanent minority. In the states, Democrats have lost ten governorships and nine hundred and ten legislative seats. This is not all Obama's fault, of course, but it rarely seems his concern, either--as it was not, apparently, in his nomination of Garland. Should something as important as a nomination to the Supreme Court be treated as a political act? Of course it should, because it is. …

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