by Eleanor Clift · July 10, 2018
Obama listened to Republican Orrin Hatch, who said a centrist Supreme Court pick could get through the Republican Senate.
In 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.