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Merrick Garland’s Marco Rubio Problem

facade of the U.S. Supreme Court
photo by Mark Fischer

Merrick Garland seems like an eminently confirmable nominee for the U.S. Supreme Court who, most likely, will never be confirmed because of what I would call his “Marco Rubio problem.”

By that, I don’t mean he will either get or lose the vote of the Florida senator whose presidential campaign ended Tuesday night with a humiliating defeat in his home state. Rubio probably will never get the chance to vote on Garland’s nomination at all, since the Republicans in control of the Senate have said they want the next president – whoever that is – to pick a replacement for the late Justice Antonin Scalia.

Instead, I mean that Garland’s bid for the high court has the same basic problem that beset Rubio’s campaign for the White House. This is a perfectly good-looking candidate who, at this moment in history, lacks enough of a constituency to carry him across the finish line.

Rubio tried to project an optimistic, inclusive flavor of conservative Republicanism in a year in which most of the GOP primary electorate felt neither optimistic nor inclusive. His message brought him victory in only one state – Minnesota – plus Puerto Rico. He made other mistakes that undermined him, but the basic problem turned out to be a mismatch between the candidate and the electorate.

Garland probably has the same problem. He is apt to be too conservative for Senate liberals – a big reason President Obama did not nominate him six years ago, when he put forward Elena Kagan instead – and too liberal for the conservatives. His track record on gun ownership alone probably disqualifies him in the eyes of most Senate Republicans, with the possible exceptions of Susan Collins in Maine and Mark Kirk in Illinois.

But as Senate GOP Leader Mitch McConnell has made clear, it won’t come down to a vote because there is simply no reason for Republicans in control of the Senate to hold one – at least not before the election. If a Republican wins the White House, the Garland nomination will be effectively dead. And if Hillary Clinton (or, highly improbably, Bernie Sanders or some other Democrat) is the victor in November, Senate Republicans can make a strategic choice: They can either move ahead with Garland, which they might do if the incoming Senate will have a Democratic majority, or they can go ahead and punt the question to the next Congress if the GOP maintains its control.

So why did Obama pick Garland? Almost certainly not because he fits the incumbent president’s ideal view of a Supreme Court justice. Not only is he too centrist – or at least too much of an unknown quantity – but he’s also relatively old, at 63. But he has had past Republican support (albeit before some of his D.C. Circuit jurisprudence on guns and the Second Amendment occurred). This allows Obama to make the argument that the Senate is merely being obstructionist.

He used Garland’s nomination to make this argument exactly, in fact. “[…] it is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that’s going on in the news every day,” Obama said on Wednesday. “But to go down that path would be wrong.”

It is the same argument that every president makes when a Senate blocks one of his nominees. Obama himself participated in such an attempt to block Samuel Alito’s nomination in 2006. Given the way in which the tables have turned, it is not entirely surprising that the president now says he regrets his participation in the filibuster. “Procedural maneuvers” to block a nominee are a lot less appealing when you are the one making the nomination.

The president’s fellow Democrats will seize on the argument that Republicans are shirking their duties, even as they secretly hope for a November sweep and Garland’s subsequent withdrawal in favor of a younger and more liberal candidate. Republicans will duly refer the nominee to the Senate Judiciary Committee for a hearing that will simply not happen, at least not before a lame-duck session late this year.

Who will be bitterly disappointed by the failure of Garland’s nomination to advance? Basically nobody. Like Marco Rubio, Garland is a candidate outside his time. The demand for a moderate, scholarly, even brilliant and nonideological jurist simply is not there, no matter how much we might say we wish it were otherwise.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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