Wednesday, March 16, 2016

Obama’s gutsy “Godfather” move: Merrick Garland nomination is as big a GOP nightmare as Donald Trump

In “The Godfather II,” the Corleone family lawyer Tom Hagen describes to his brother Michael how they’ve been tactically outmaneuvered by the old gangster, Hyman Roth. “Roth . . . well he — he played this one beautifully,” says Hagen, with more than a little grudging admiration.

Assuming they’re not throwing themselves out some of the higher windows in the Senate office building, a lot of Republican senators must be having similar thoughts about Barack Obama.

Obama’s decision to nominate Merrick Garland to the Supreme Court is what in technical legal terms is known as a gangster move. It puts Senate Republicans in a basically impossible position – as if the 24 GOP senators up for re-election this November didn’t already have enough problems, what with the ticket almost certain to be headed by a full-fledged disaster of a presidential candidate. (It’s actually hard to say whether Donald Trump or Ted Cruz is less electable, but either of them is basically a worst-case scenario for down ticket GOP candidates.)

Consider: Just a half-dozen years ago, Orrin Hatch, perhaps the single most influential Republican senator in regard to judicial nominations, declared that Merrick would be “a consensus nominee,” and that furthermore there was “no question” that he could be confirmed.

Under normal circumstances, the choice of a thoroughgoing judicial moderate such as Merrick would be considered by Republicans a best-case nomination by a Democratic president – hence, Hatch’s eagerness to see him picked for the open seat that went eventually to Elena Kagan.

But these aren’t, to put it mildly, normal circumstances. Republican senators have agreed almost unanimously that they won’t consider anyone nominated by Obama this year, on the basis of the constitutional principle (like a lot of GOP constitutional principles, this one isn’t actually in the Constitution, and indeed has heretofore never been enforced, or even articulated) that a president shouldn’t try to fill a Supreme Court vacancy in a presidential election year.

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