By JAMES K. FITZPATRICK
The famous chapter about the lion and the fox from Machiavelli’s book The Prince came to mind as I listened to the give and take between the conservative and the liberal commentators over President Obama’s selection of Merrick Garland to fill the Supreme Court seat left vacant by the death of Antonin Scalia. (Garland is currently the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, confirmed for that position in 1997 by a 76 to 23 vote, with the majority support of senators from both major parties.)
Machiavelli’s point was that a ruler should use open and overpowering force to achieve his goals in certain instances, but rely more on guile and cunning in others. One approach was not better than the other, in Machiavelli’s eyes. Morality had nothing to do with the choice. Everything depended upon the nature of the enemy and the circumstances that prevailed.
The conservative and Republican “lions” in the debate over Judge Garland are convinced that this is no time to rely on guile. They tell us that we should not buy the Obama administration’s line that Garland is a moderate, insisting that Obama would never run the risk of nominating a moderate; that his goal is to reshape the Supreme Court by securing five Supreme Court justices that will vote as a bloc on the issues that matter to liberal Democrats.
Beyond that, the lions argue this is time for payback for the unfair treatment in 1987 of Robert Bork by Senate Democrats when he was nominated for the Supreme Court by Ronald Reagan. A Yale Law School professor, solicitor general, acting attorney general, and — like Merrick Garland — a judge of the United States Court of Appeals for the District of Columbia Circuit, Bork was as qualified as any man ever to be nominated to the Supreme Court. Yet the Democrats in the Senate and the media slandered him to ensure his defeat. Ted Kennedy was ruthless in his accusations.
The lions also point to how Joe Biden, when he was member of the Senate in 1992, openly proclaimed that no nominee for the Supreme Court should be considered in the months before a presidential election. They also remind us of Barack Obama’s filibuster, back when he was Sen. Obama, of the nomination of Samuel Alito to the court. What is sauce for the goose, is sauce for the gander. Liberal Democrats have to be taught a lesson, say the lions; they insist that conservatives and Republicans have to fight back and not permit themselves to be manipulated unfairly by the Democrats.
It is a valid point. It is unreasonable to contend that goodwill and a spirit of compromise can be brought to the Senate only by Republicans giving in to the Democrats when they play hardball. Being fair-minded is different from permitting oneself to be played for a chump. Compromise is a two-way street.
It is this logic that lies behind the position taken by leading Republicans that it is “the process, not the person” that matters. It is why people like Speaker of the House Paul Ryan maintain that even if Garland is a qualified candidate, an appointment to the Supreme Court should wait until we have chosen a new president. It is why Republican Senate Majority Leader Mitch McConnell has promised to not even hold hearings on Garland’s nomination.
Is this “obstructionist”? The Democrats who make that charge know full well that they would be doing the same thing if the tables were turned and a Republican president were making the nomination in the months before a presidential election. The Republican lions are determined to give the Democrats a taste of their own medicine — even if that means they may be cutting off their noses to spite their face.
Which may happen, argue the Republican “foxes.” They remind us that there is no guarantee that Hillary Clinton will not win the election this fall. If she does, she will likely nominate a candidate far more to the left than Garland. Bernard Sanders has promised that he will appoint someone more “progressive” if he becomes president. This is the concern of Fox News contributor Judge Andrew Napolitano, who has known Garland professionally for many years. He has been telling anyone who will listen on the talk shows that Garland is the most conservative nominee for the Supreme Court made by a Democrat in our lifetimes.
In fact, Napolitano is convinced that Obama has nominated Garland only to put Republicans running for office into a corner during the election season by making them appear unreasonable to the voters when they block his nomination. Napolitano believes that Obama does not really want to see someone as moderate as Garland confirmed.
In other words, Napolitano is convinced that Obama is bluffing us; that he is counting on the Republicans to deny Garland a fair hearing so that Democrats running for office and liberals in the media can highlight their “partisanship.” Napolitano urges us to call the bluff, insisting that Garland is “closer to Antonin Scalia than to Elena Kagan,” that he is a judge with “a record of center-right decisions,” and someone that Obama and his supporters would never nominate if they thought he had a chance of being confirmed by the Senate. He maintains that Garland is someone whom conservatives can live with, especially when one considers the kind of candidate we will get from a President Hillary Clinton; that confirming him would not be giving Obama a victory.
Judge Napolitano is exceptionally wise in these matters, in my experience. But what if he is wrong this time and we get a fifth liberal on the Supreme Court, one who votes consistently with Elena Kagan and Ruth Bader Ginsburg? High stakes indeed, keeping in mind that it is difficult to predict how Supreme Court justices will vote once they are confirmed. Earl Warren and David Souter were nominated by Republican presidents.
On the other hand, what if Napolitano is correct, and Garland was chosen by Obama as a stalking horse meant to score political points? If that is the case, calling Obama’s bluff will result in a new Supreme Court justice more moderate than Hillary Clinton will ever nominate. Perhaps even one who would be more moderate than a future Republican president would be able to get through a filibuster by Democrats in the Senate.
A caveat: Liberal Democrats are familiar with Machiavelli. It is likely that Obama and his advisers have considered the possibility that the Republicans in the Senate would react to Garland the same way as has Judge Napolitano, and that it wouldn’t bother them in the least to see him confirmed. They could be playing the fox on this one, too.
Perhaps they know Garland’s views better than does Judge Napolitano. That is an uncomfortable thought, no?
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