Sunday, July 01, 2018


In The New York Times, Michael Tomasky reminds us that he recommended a choice other than Merrick Garland when President Obama was faced with a Supreme Court vacancy early in 2016:
The time to play hardball was 2016. Maybe there’s nothing they could have done, given that the Republicans ran the Senate. But consider this counterfactual.

I argued at the time that President Obama should have nominated not Judge Garland but Mariano-Florentino Cuéllar, then 43 years old and an associate justice on the California Supreme Court. Justice Cuéllar would have been an aggressively political choice in exactly the way Judge Garland was not. As a young, impeccably credentialed Mexican-American — by far the largest of the Latino voting blocs — Justice Cuéllar would have been someone to whom the Democrats’ core constituencies would have developed an emotional attachment. Someone they’d fight for.

That, of course, is in all likelihood exactly why Mr. Obama didn’t nominate him — too political. Mr. Obama appeared to have deluded himself into thinking that if he advanced an older man (Judge Garland was 63, meaning he would not be on the court for 40 years) with something of a centrist reputation, Mitch McConnell might decide to be a reasonable fellow and give him a vote.

But as everyone else in the world knew, Senator McConnell was never going to give him a vote. And no, he wouldn’t have given Justice Cuéllar a vote either. But in that case, the refusal would have carried a higher political price. It would have energized the Latino vote. It would have made the Supreme Court a more central voting issue to Democratic constituencies than poor Judge Garland ever became.
That sounds sensible as a base-motivating strategy -- but Trump called Mexican immigrants rapists and built his campaign around a promise to construct a wall on the Mexican border. He attacked Gonzalo Curiel, a judge of Mexican descent, as well as Alicia Machado, a former Miss Universe from Venezuela. If all that wasn't enough to drive up anti-Trump turnout among Hispanics, why would a blocked Supreme Court appointment have tipped the balance?

Cuéllar doesn't appear to be a left-wing ideologue, but he'd been appointed to the California Supreme Court by Jerry Brown, whom conservatives regard as a left-wing radical, and previously worked for the Obama administration. That would have given Mitch McConnell enough of an opening to argue that he was blocking the nomination because Cuéllar is a committed hard-core progressive.

Meanwhile, Donald Trump and the right-wing noise machine would have had something to say about this:
Growing up in a hardscrabble town along the Rio Grande in Mexico, Mariano-Florentino Cuéllar crossed the border with his brother each day to attend school in Brownsville, Texas....

After living in the Mexican border town of Matamoros, where he made his daily trek to school in Texas, his family got permanent resident visas and moved to Calexico in California’s Imperial County, where he attended high school.
Cuéllar and his family were legal immigrants, but I'm sure someone on Fox News would have called him an "anchor baby," even though that's not what an "anchor baby" is. Donald Trump probably would have said the same thing.

But I also believe the choice of Cuéllar would have led to negative coverage for President Obama in the mainstream media. Here's the president of a divided country, we would have been told, and instead of offering a safe, consensus Court pick in the last year of his term, he makes a choice designed to play to his ideological base, and to the interest-group politics that plague the Democratic Party. Surely there's no more divisive force in American politics than Donald Trump, but Obama, in his own way, is being similarly divisive. Why couldn't he try to play healer by naming a middle-of-the-road justice such as ... Merrick Garland?

McConnell would have blocked Cuéllar, but he probably wouldn't have acknowledged his intention to block any nominee. Hand-wringers in the mainstream press would have argued that Obama should withdraw Cuéllar's name and nominate Garland instead. But if Obama did that, he'd have been regarded as a sellout by Hispanics and liberals. If he held firm, he'd be accused of of pandering to the base at the possible cost of a Supreme Court seat.

Okay, maybe it wouldn't have played out that way. But it could have failed the way the Garland appointment failed, as both an appointment strategy and an electoral strategy. What was really necessary was a serious focus on the court on the part of Democratic voters.

We failed. Obama might not have been able to do any better, but we could have.

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