In the moments after Justice Scalia’s death, my first thought (as reflected in this blog post) was that the President could well nominate Merrick Garland to fill Justice Scalia’s spot on the Court. I wrote: “This is a highly polarized time, and strong conservatives will fight VERY hard to have Republicans block a liberal appointment to the Court. So the Obama administration faces something of a choice. Nominate a hard-core liberal who could be filibustered by a Republican Senate, or nominate someone more moderate (Judge Garland?) who could PERHAPS get confirmed if enough Republicans would be willing to go along.”
Garland is indeed a moderate, someone who will not excite the Democratic base the way other nominations would. But the same could be said for Sri Srinivasan, who seemed to have the inside track for the nomination until moments before the Garland news leaked. While Garland and Srinivasan may differ slightly on ideology, it is not enough to sway Obama to choose one over the other.
So what explains Garland over Srinivasan? One possibility, as I suggested on Twitter last night, is that Srinivasan did not want to be nominated, to be the “pinata” with less than even odds of being confirmed. He’d rather save himself for the next Democratic president. That’s certainly one possibility.
The other is that Garland was chosen because he is significantly older (63 vs 49). I have suggested (in the last chapter of Plutocrats United) that one way to compromise on SCOTUS nominees is an 18 year term limit. Appointing someone who is 63 moves in that direction. It gives the President a win, but one which as a matter of probability and actuary tables won’t be on the Court as long. It is a way for Obama to say that he could have reached for greater power over SCOTUS, but compromised.
In short, Garland’s age, which may make some liberals oppose his nomination, may be precisely what is attractive to the President who actually wants to appoint someone to #SCOTUS, and not just put up the human pinata.