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Reading, Looking, Listening, . . . Questioning

Merrick Garland and the Danger of Pragmatism



Supreme Court_AP_660internalMost people seem to believe that Judge Merrick Garland—President Obama’s pick for the Supreme Court vacancy—will not be given a hearing by the US Senate. Senate Republicans appear staunch in their position that they will only consider a nominee from the next President. Garland, according to the common wisdom, is a sacrificial lamb; his moderate bona fides make him the perfect nominee if Obama wants to expose the hypocrisy of the GOP, even if the President’s true preference  is for a more liberal Justice. Rob Hunter of Jacobin Magazine questions this common wisdom:

[W]hy should we think Garland is not to Obama’s liking? Why should we assume he’s a pawn, rather than a judge the president would be perfectly happy to see on the Court bench?

Obama — much like Chief Justice Roberts — has long rhapsodized about the virtues of consensus and judicial restraint. During his speech announcing Garland’s nomination, Obama lavished praise on the federal judge for his ‘even-handedness,’ for being a ‘judge who follows the law.’ He clearly finds Garland’s reputation for consensus-building and caution attractive.

Hunter goes further, not only wondering if Garland is Obama’s true preference, but also taking issue with what he thinks are weak and conciliatory practices in today’s American left wing.

[The] tendency to immediately discard contestation in favor of conciliation has become the hallmark of Obama’s interactions with congressional Republicans. It is no mere personal foible, however. It is emblematic of the Democratic Party’s decades-long rightward march. Today’s proud progressives happily espouse positions formerly held by their party’s opponents.

Today’s Democrats do not merely court the median voter located between their party and the Republicans’. They are committed to that pursuit even at the cost of not holding any firm ideological commitments. To do otherwise would carry the risk of messy contingency in the struggle for shared goals, in the face of concerted opposition. It would carry the risk of politics.

Of course, these two notions—Garland as a political pawn and Garland as a nominee who reflects the values of a weakened liberal party—are not mutually exclusive. As someone still hopeful for a ninth Justice who isn’t as friendly to Wall Street and hostile to criminal defendants as Garland seems likely to be, I want to believe that a progressive champion is waiting in the wings. Hunter, I think, would call me naive:

The nomination of Merrick Garland is only the latest illustration of this tendency in liberalism. Rather than articulate alternatives, state aims, and build coalitions to pursue them, liberals allow their opponents to define the terms of debate for them. Rather than seek the support and solidarity of those to their left, they await the arrival of conservatives they believe they can reason with.

We cannot rely on liberal politicians to abandon their ongoing tilt to the right — we have to make it impossible for them to stay the course.

— Drew Whitcup, Zeteo Contributing Writer

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