#SCOTUSNom: No Time For Compromise Offerings | #SCOTUS on Blog#42

President Obama nominated a “liberal” judge to replace Antonin Scalia, using a formula that has returned very mixed results during both of his terms: tantalizing an obstructionist opposition with compromise offers. Judge Garland, a good man by all accounts, is no progressive at a time when the most progressive judges are needed on the high court to reverse decades of horrendous decisions.

While it is perfectly understandable that President Obama would want to see through a nomination he has every right to make and the Senate every obligation to consider, the time for peace offerings or Trojan horses – whichever way you want to look at it – that time is long past us.

In fact, one can easily argue with the perspective of hindsight, nothing has appeased the congressional GOP. It was never really about Obama being aloof, inept, dictatorial, or anything else. It has always been about denying a Black president his presidency. For the most part, the GOP has won the battle. They’ve been successful in obstructing the vast majority of this nation’s policy-making business at the cost of an economy that continues to be anemic for the average citizen, and bountiful for the average plutocrat. The inequality gap continues to grow, in large part thanks to Supreme Court decisions that essentially legalized corruption. But there are many other decisions that are up before the court that are no less urgent. The death penalty, women’s rights, voting rights, Affirmative Action, healthcare, corporate rights, money in politics, and more.

As we consider Merrick Garland, the first question we must ask is would he have been among the top choices for nomination with a different Senate? The answer, I think, is no – not because of Garland’s qualifications or track record as a judge, but his neoliberal bent. Where does Garland stand on some of the most important issues of our day?

  • He is pro-gun rights
  • He voted against the rights of GITMO detainees
  • He seems to be against the legalization of marijuana

Will Garland turn out to be more like David H. Souter? Anthony Kennedy? Somewhere in between?  While it seems doubtful that Garland would join the right wing of the court on a regular basis, it is likely that he would serve as a counterpart to Anthony Kennedy, casting votes that go against the grain every so often. At this point in time, that kind of likelihood, known from the outset, should have made this choice an untenable one.

The road to the hell we are in today was paved by neoliberal triangulation, or the making of compromises on core principles just to get things done with an eye only on the immediate, rather than long term. Twenty to thirty years later, we end up in untenable situations, with court decisions that affect this nation’s governance in every way imaginable.

At this point in time and with everything that is at stake, only a progressive candidate should be considered. Making a political issue of the Senate’s obstruction, while understandable, is shortsighted – almost selfish – considering what is at stake for the very long term. We need an Anita Hill on the court – not another white neoliberal dude. The nation needs to know that with this nomination, the nation is on track to reverse the balance on the court and not possibly perpetuate its current neoconservative bent.

President Obama should have realized that the time for compromises has long left us. Perhaps, this is just an exercise in politics to rattle the right and all sides know this candidacy will go nowhere. But in the event Mitch McConnell does bite and Merrick does become a justice, what may have begun as a taunt, has the potential to become a liability for years to come.

President Obama’s legacy is assured with or without this judicial appointment. The decision to nominate Merrick is unwise, especially if this nation ends up with yet another neoliberal as president. Surely, with a Congress that is still under the partial control of Republicans, a President Clinton will nominate other neoliberals to the court who might vote progressively on some, but not most issues, and continue on the rightward path this nation has been on for too many decades.

We need to reverse course, not continue on the rightward path we’ve been careening on.

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