A truly brilliant plan (if true)


The Washington Post’s Greg Sargent offers a truly brilliant plan to the nomination of Judge Merrick Garland to the U.S. Supreme Court. It would be fitting justice for the insurrectionist Tea-Publlicans ‘blockading”(an act of war) the U.S. Constitution, the President, and the U.S. Supreme Court in a fit of Obama Derangement Syndrome and  a belief that they possess a divine right to control the U.S. Supreme Court. How Obama (Democrats) could get last laugh in Supreme Court fight:

GarlandNow that President Obama has rolled out a Supreme Court nominee who is being widely described as a “centrist” who has “drawn praise from both parties,” some analysts are predicting that it may be harder for GOP Senators to continue to refuse to consider him. But if anything, most signs this morning are that Republicans are only digging in harder behind their stance that only the next president should pick Antonin Scalia’s replacement.

But there is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.

That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.

The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.

But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.

But Obama could decline to play along with that scenario.

“Waiting until a lame duck session to decide whether to act is a high risk strategy, as Obama could always withdraw the nomination, giving a President Clinton the opportunity to swing for the fences,” Jonathan Adler, a libertarian-leaning law professor at Case Western Reserve University, tells me. Adler adds that Obama could simply justify this by arguing “that voters elected Hillary, that he gave Republicans a compromise offer, and they rejected it.”

The amusing thing about this outcome is that, in justifying the decision to allow Clinton to pick a more liberal nominee than he did, Obama would be offering a version of the rationale Republicans offered for not considering his pick at all: the voters have rendered a verdict on what Scalia’s replacement should look like, by picking the next president, and now we should honor that. And in this scenario, Republicans might end up with only downsides: they might end up sustaining a lot of political damage by refusing to act on Obama’s nominee at all, and they’d end up squandering the chance to get a more centrist Justice, rather than a more liberal one. (They would have kept the base happy, of course, but at what price?)

Obviously Republicans might still stick to their current strategy, because — again — it’s worth taking a big gamble in hopes of electing a Republican president to keep the Court tilted in a conservative direction. And who knows — maybe they’ll prove right, and the GOP will take the White House. But if it’s looking more likely that Clinton is going to win, and if more chatter about the above endgame arises, Republicans might feel more inclined to confirm Obama’s nominee before the election. As Adler puts it: “It would become a game of chicken.”

UPDATE: It occurs to me that I probably should have argued that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Hillary after the election. And liberal Dems (some of whom are already disappointed by the Garland pick) would be getting their preferred outcome. I’m not predicting this will happen, just floating it as an interesting possibility. You may also see some liberal pressure on Obama to do this, if Democrats secure a big victory in November (though whether Obama would bow to it is anybody’s guess), which would also be an interesting scenario to see play out.

At any rate, maybe the headline should have been: “How Dems could get last laugh in Supreme Court fight.”

Interesting indeed. Insurrectionist Tea-Publicans at war with the Constitution and the other co-equal branches of government lose the presidency (again), lose the Senate, and lose Scalia’s conservative activist seat on the Supreme Court to a young  liberal justice for a generation. Brilliant! Tea-Publicans, of course, would blame that evil genius Barack Obama, rather than their own unbridled hatred of Obama and their lawless behavior.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. The problem with the strategery here is that Obama is a better person than to use Garland as a pawn in some game of political chess. I’m not a fan of Obama the politician, but from all I’ve seen of his actions as a human being I doubt he would consider doing something so shitty to his nominee.

    • I agree with you on that one Bob. I can see if this played out Obama would still push for Garland’s approval. This would allow his leagacy on the court to be solidified. Remember that the next President has the very strong possibility to choose his/her own nominee during the next few years and this is something I think our current president will consider. I do not see him selling Garland down the river.

  2. This is an excellent scenario to consider and to possibly pressure the Republicans. I think Obama made an excellent pick that allows him to expose the weakest of senators up for reelection. Lets hope it helps Dems get the Senate back.

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