By Craig Green
When Justice Sandra Day O'Connor resigned from the Supreme Court in 2005, many commentators predicted a "battle royale" over her replacement. For 10 years, O'Connor had been the swing vote in cases about abortion, affirmative action, states' rights, and nearly everything else. Republicans were determined to shift the court to the right, and Senate Democrats braced to resist them.
But by nominating John Roberts to succeed O'Connor (and later to become chief justice), President George W. Bush smothered would-be critics with a candidate of impeccable merit. Although Roberts was remarkably conservative and had meager judicial experience, the combination of his stellar academic credentials, obvious talent, and judicial demeanor made him impossible to beat in a confirmation fight.
Justice John Paul Stevens' recent resignation announcement poses a new risk of partisan trench warfare, though for very different reasons.
President Obama almost certainly will not use this appointment to try to swing the court to the left. Yet some movement conservatives and Republican senators will seize any opportunity to fight about social values and judicial politics in an effort to encourage Americans to reject Democrats in the midterm elections. Contentious judicial hearings about abortion, race, religion, guns, and "judicial activism" could help that political script become a reality.
And if confirmation fireworks can distract attention from economic reform and the nascent recovery, so much the better for Obama's Republican opponents.
To combat these risks, Obama's short list includes several highly qualified and moderate potential nominees, including Circuit Court Judge Diane Wood and Solicitor General Elena Kagan, each of whom could be an outstanding nominee and justice. At this moment, however, the best choice may be Circuit Court Judge Merrick Garland.
In 15 years on the bench, Garland has become one of the most respected appellate judges in America. (By way of disclosure, I clerked for Garland nine years ago.) Born and raised in Chicago, he was extraordinarily successful in college and law school. He clerked for the renowned Judge Henry Friendly as well as Justice William Brennan, and served as special assistant to the attorney general in the Carter administration.
After eight years at a law firm, Garland reentered public service as an assistant U.S. attorney, which allowed him to handle a range of cases and experience the street-level realities of the criminal justice system. He later headed the Department of Justice's Criminal Division and then became principal associate deputy attorney general, supervising prosecutions in the Oklahoma City bombing and Unabomber cases.
Furthermore, Garland's 15-year record on the D.C. Circuit Court of Appeals has shown his ability to ask the hard questions and work with an ideologically diverse group of colleagues.
These diverse experiences and achievements make Garland a strong nominee and an excellent justice. So, too, would his reputation for impartiality, unimpeachable ethics, and extraordinary intelligence.
Nominating Garland would avoid a bruising confirmation battle. His talent and record would silence all but the most obstructionist Republican critics, and his answers in Senate hearings would likely head off serious debate. And Republicans who opposed him would only bolster Democratic criticisms of the GOP's "just say no" approach.
Most important, Garland would add a respected and credible voice to the center-left wing of the court. No one would be better suited to find common ground with a swing vote such as Justice Anthony Kennedy and to act as a counterweight to the court's powerful conservative bloc.
Resistance to Garland's nomination would come less from Republicans than from liberal Democrats, who might think him "too moderate" given their party's solid majority in the Senate. Putting aside the merits of such an objection, this is simply not the right time for Obama to push a "transformative" liberal nominee, even if he wanted to.
A future vacancy on the court might give Obama a chance to seize on a better job market and a more motivated political base to push a more controversial nominee. Right now, however, it may be best for the Democrats, the court, and most of all the country for Obama to choose the most qualified and confirmable nominee on his short list. In this instance, the politically savvy choice is also an excellent one.