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Clift writes: "Barack Obama's failed appointment of Merrick Garland to the Supreme Court in 2016 lacked both imagination and hard-ball politics, leaving a legacy of 'what ifs' that Obama, if he's being honest, will confront."

Orrin Hatch. (photo: Kristin Murphy/Deseret News)
Orrin Hatch. (photo: Kristin Murphy/Deseret News)

Did Obama Pick Merrick Garland or Did Orrin Hatch?

By Eleanor Clift, The Daily Beast

11 July 18


n his forthcoming memoir, President Obama will reflect on his “no drama Obama” governing style, so radically different from that of his successor. But will he acknowledge the limits of his signature restraint?

His failed appointment of Merrick Garland to the Supreme Court in 2016 lacked both imagination and hard-ball politics, leaving a legacy of “what ifs” that Obama, if he’s being honest, will confront.

“I think the Garland episode reflects so clearly the inability of Obama to translate his successful presidential campaigns into governing, and the limits of his philosophy of restraint. A liberal lion like FDR might have pursued appointment to the bench by executive order,” says Alexander Heffner, host of The Open Mind on PBS.

He makes the case that if Obama had chosen runner-up Jane Kelly, the grassroots activism that propelled Obama into the White House would have kicked into high gear with supporters camped out in Judiciary Chairman Chuck Grassley’s front yard demanding he give< her a hearing.

Kelly, an Iowa native like Grassley, a former public defender and the embodiment of a public servant, had been unanimously approved by the GOP-led Senate for the federal bench in 2013. Just north of 50, she was considerably younger than the 63-year-old Garland. Progressive groups begged Obama to appoint Kelly, whose story touched hearts, but Obama listened to Republican Orrin Hatch instead, who counseled a centrist choice could get seated by the Senate his party controlled and still does.

“Who listens to Orrin Hatch?” a liberal activist exclaims, still angry at Obama for “taking the path of least resistance. He didn’t want to make waves.” Hatch had given his blessing to President Clinton naming Ruth Bader Ginsburg, and Obama thought history could repeat itself. “He was fooled by Orrin Hatch, who then turned around and betrayed him,” this activist says. “He made a terrible mistake, the biggest mistake of his presidency.”

At the Democratic Convention in July 2016, Obama spoke eloquently on Hillary Clinton’s behalf, but did he mention Garland’s stalled nomination? “Not a word,” says the activist. “Not one word.” If a Republican president had been denied his Supreme Court pick by a Democratic Senate, there would have been hell to pay. Obama kept hoping reason would prevail.

When I asked my millennial daughter-in-law why Democrats have failed to make the court a voting issue for their base the way Republicans have, she replied, “Because they’re too busy capitulating.”

Some on the progressive left wanted Obama to name Mariano-Florentino Cuéllar, then 43 and a judge on the California Supreme Court. The right would have savaged the pick as a blatantly political bid for the Hispanic vote, and his rejection might have galvanized the Hispanic vote in Hillary Clinton’s favor, thus averting the nightmare Democrats now face with a conservative takeover of the court.

Progressive activists tend to blame Obama more than Hillary Clinton for the Democrats’ failure to rally voters around the fate of the Court. “She thought she would win, so why would she have to talk about the Court?” is how one of them put it.

Clinton could have, should have talked about the court more, and it might have paid dividends on Election Day. A high point of her campaign for many women was her impassioned defense in the final presidential debate of late-term abortion as a heart-wrenching but sometimes necessary medical procedure.

“There was enormous pressure from the Alliance for Justice and other groups not only on her but on candidates across the country to talk about the Supreme Court,” says Nan Aron, who founded the progressive Alliance for Justice in 1979.

The hard truth is Clinton didn’t think she had to. She thought she would win, so why would she have to talk about the court?

Talking about the 1973 decision that legalized abortion, Roe v. Wade, as hanging by a thread did not resonate with voters. A 2013 study by the Pew Research Center found that 62 percent of 18- to 29-year-olds thought abortion was “not that important.” Only 44 percent of Americans under 30 knew what Roe was about.

Contrast that with 81 percent of young people saying that people of the same sex should be allowed to marry, a Supreme Court decision they had personally experienced, and that Clinton was always careful to mention in tandem with Roe.

Candidate Trump talked about the court and how he would nominate pro-life judges at every campaign stop. He even circulated lists of judges vetted by the Federalist Society and the Heritage Foundation to assure evangelicals of his constancy on the issue.

It never occurred to Clinton to circulate such a list on the progressive side. It would have been seen as unnecessary, a stunt. And again, she thought she would win.

Republicans, beginning with Brown v. Board of Education, the unanimous 1954 ruling to integrate public schools, prioritized the court as a voting issue. “It was the first time a decision erupted into a firestorm,” says Aron. “Impeach Earl Warren” bumper stickers appeared, mainly in the South. An Eisenhower appointee and a former governor of California, Warren was chief justice at the time.

“A sizable number of people turned against the court,” says Aron. “The court became this whipping boy, and that group expanded exponentially with Roe.”

The 1984 Republican platform to re-elect President Reagan for the first time since Roe was passed in 1973 opposed abortion and affirmative action and called for the restoration of prayer in schools. “And every Republican president since has appealed to justices who will turn back the clock,” says Aron.

Anita Dunn, a Democratic strategist who advised Obama, says the Republicans clearly defined the Supreme Court as a threat to those Americans who are concerned about a changing America while progressives over the past 10 years have been OK with the court. “On the big issues, gay marriage, Roe upheld, Obamacare, they’ve taken positions that most Americans support,” Dunn said. “People think there’s no problem, not that these issues are hanging by a thread.”

What’s true historically doesn’t hold anymore. Women care, as evidenced by the women’s march the day after Trump’s inauguration. The threat to rights Americans have come to take for granted is very real, and Democrats, liberals, progressives have got to take a page from the other side and fight like the court is the most important public policy issue of their time. This is a court battle that mobilizes both sides, and it doesn’t end with Kennedy’s replacement.

It's not easy for a president, any president, to express regret, and Obama will likely document his decision-making around SCOTUS with ample blame on the Republicans. Now it’s up to the voters to fight the battle that eluded Obama. your social media marketing partner


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We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

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+25 # librarian1984 2018-07-11 11:48
The establishment tells us the 2010 midterms were a referendum on race but they were at least as much a rebuke by disenchanted Democrats.

Early on, when O put Paulson, Geithner and Summers in charge of the economy we knew we'd been sold another bill of goods, a nice smile on a corporate tool, and not much happened to change that opinion. Health care, war, trade, immigration, black rights, one after another he backed down from those fights and catered to donors, the people he windsurfs with now, the ones Hillary gave secret speeches to. The party will not thrive until it kicks out the moneygrubbers.

Poppy Harlow did an interview with Ocasio-Cortez, and asked hard-hitting questions like 'Do you consider yourself a Democrat or a socialist?' 'Can you say unequivocally that you will support the 2020 Democratic candidate? If not, don't you think that's a problem?'

The DP and the msm have much to answer for, though neither shows any interest in doing so.

I appreciate seeing a longtime observer like Clift make these points so well.
+13 # economagic 2018-07-11 18:57
Yes! You sound like a graduate of the Magic School of Economics (the MSE, one notch above the LSE).

Everyone in this country understood by election day, 2008, that they had been screwed by the big banks, most understood that it had occurred under a Republican president, and many had been frantically phoning their representatives in Congress a few weeks earlier to demand that the guilty parties and not the taxpayers pay for their actions. And those who had any knowledge at all of the new president's appointees understood that they were being screwed again.

I can sympathize with Obama: As the first Black president he knew that he would be in the crosshairs, figuratively and quite possibly literally. But he too had drunk the Kool Aid, having been supported and mentored for several election cycles by 0.0001 percenter and Chicago Gold Coaster Penny Pritzker, who had to excuse herself from consideration to be his first-term Commerce Secretary to clean up the mess remaining from a failed family bank that had gone bust investing in sub-prime home mortgages in about 2002.

I recall a book from 2004 titled "Imperial Hubris." Get yours now, as the overreachers of that era sopped up most of the remaining stock, and members of the present regime (sic) are claiming all that's left and more. Of course, most of them require very little, being well-supplied with hubris on their own.
+6 # Rodion Raskolnikov 2018-07-11 20:20
I did not see the interview but those are exceedinly stupid questions. No one knows who the 2020 candidate will be.

Democrat or Socialist. "Demos" in the word democrat means people. It is the "people's party." That's also what socialism is. The two are not opposites. They are the same things.

Why doesn't this Poopy ask Hillary if she unequivocally accepts that Trump is president.

Did you see that Hillary, Sanders, and Warren are speaking at the AFT convention in Pittsburgh. They are all running for 2020. And they are all looking for Union support. The AFT is a teachers union so it will probably cheer Hillary. Teachers can be really stupid about some things. Any other union would cheer Sanders and toss Hillary out on her can. Not sure how Warren will do.
+5 # EternalTruth 2018-07-11 22:40
Wow! That’s a perfect summation of Obama’s presidency. There are so many supposed progressives who idolize Obama that it makes me realize “our side” is almost as stupid as “their side” when it comes to seeing what we want to see and ignoring reality.
+6 # EternalTruth 2018-07-13 01:54
And on that note, I’m reading a diary on Daily Kos right now with everyone gushing about what a great president Obama was. If I had any hair I’d tear it all out in frustration.
+5 # librarian1984 2018-07-13 11:38
I had great hopes for Daily Kos but they went downhill fast. imo they're more estalishment, therefore neoliberal, than progressive, and they trashed Sanders more than once.
+5 # EternalTruth 2018-07-13 14:16
I agree completely. It seems to be mostly people claiming to be progressive while bashing anyone who doesn’t line up behind the neoliberal agenda.
+1 # librarian1984 2018-07-14 11:21
Do you ever comment there? I thought about riling them up but I get so discouraged reading the posts there. Haven't been in a while though, don't know if it's still the same?
+13 # Rodion Raskolnikov 2018-07-11 11:50
Clearly giving up on his surpreme court nominee was a great failure or loss for Obama. I did hear that he allowed Hatch to pick Garland in the hope that Hatch would carry the load of the senate hearings and vote. Obama just seemed tired of the fight and he seemed to want to be out of the job. He was never a fighter. He likes being a celebrity but not a political fighters. He simply did not have the stones to go up against McConnell. He much preferred to make appearances with sports figures or any other TV-worthy people.

This is a real problem. All democratic presidents since LBJ has been weak and compromising. They just surrender to pressure without much of a fight. LBJ knew how to fight. He'd been a master of working the senate for too long. And he continued that as president. But Clinton and Obama bent to the will of republicans as if they were just water carriers for the GOP.

There's more indications that Hillary is running again.

She's appearing at a teachers conference in Pittsburgh along with Sanders, Warren, and a few other hopefuls. Hillary is weak, too. The demos need a strong politician.
0 # Porfiry 2018-07-11 17:12
Which people would make a STRONG candidate BTW, Orrin Hatch was a high school classmate of mine and a good friend. When Ted Kennedy was in the Senate, he an Orrin worked together to create progressive legislation: ADA, CHI, etc.
+4 # Rodion Raskolnikov 2018-07-11 20:04
Yeah, the cross-party alliances between Hatch and Kennedy are legendary. Hatch pretty much owned the judiciary committee for a long time. I never agreed with him much but he was always better than the younger idealogues who now dominate the senate.
+17 # Jayceecool 2018-07-11 15:47
I agree with most of this analysis, and the passage of time has only confirmed the political incompetence of the Democratic Party during the Obama years. I have begun to seriously consider the possibility that the Democratic Party leadership is secretly working for the GOP...
+4 # lorenbliss 2018-07-12 19:05
Jayceecool says he seriously considers "that the Democratic Party leadership is secretly working for the GOP."

Believe me, I understand.

But what we are actually witnessing is zero-tolerance rule by a single cabal of Capitalists and JesuNazis who use the Big Lie of two parties to cloak their unanimity of terminal malevolence.

Were we not conditioned to see double, we would recognize this One Capitalist Party of Two Names (OCPOTN) as our newest and most apocalyptic tyrant.

It exemplifies the most diabolically irresistible of the mind-manipulati on techniques George Orwell and Aldous Huxley identified nearly 75 years ago.

And OCPOTN's infinite capabilities for co-optation and betrayal -- the latter proven by Obama's "change we can believe in" (the most malicious Big Lie in U.S. presidential history) -- combine with the cunningly induced mental paralysis of Moron Nation to perpetuate the apocalyptic notion of "American Exceptionalism, ” our species' ultimate (and ultimately self-destructiv e) Big Lie.

Yes, both parties collaborate to intensify our wretchedness. Their clandestine unity is mandated by the fact each serves the same Capitalist tyrants and the same agenda of bottomless Evil – the extinction of our species and the reduction of Earth to a bug planet if we continue failing to evolve effective resistance.

Hence we should also demand to know who - or what – these vindictively apocalyptic tyrants serve.
-3 # JoeRuma45 2018-07-11 22:54
President Obama achieved a tremendous amount during his eight years as President of the United States. He reached across the aisle to nominate Merrick Garland for appointment to the Supreme Court. Unfortunately he did not have the votes needed to overcome the Republican control of the Senate.
The Democrats and Hillary Clinton did not run an effective campaign to win the Presidency. Unfortunately they also had to overcome outside meddling by Russia as well. It is yet to be determined how Trump and his campaign staff participated in this nefarious action. Clinton spoke quite strongly about appointments to the Supreme Court as being an important point for the next President and yet she and the Democrats could not come together to overcome Trump.
Obama managed quite effectively to overcome the deep recession he inherited and he provided expanded healthcare for millions of citizens through the Affordable Care Act despite the virulent Republican opposition. It’s inappropriate to blame him for the failure of the Democrats to come together to elect Clinton or to elect Senators to stop Republican dominance.
It’s time for the Democrats to work diligently at all levels to listen to constituents and reclaim State offices and Congress to be the check and balance our Constitution envisions.

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