By Bill Mears, Fox News
Judge Merrick Garland has long been on President Obama's political radar-- considered for each of the three Supreme Court nomination opportunities of his term, and receiving incrementally more serious attention each time. That he was chosen reflects what court watchers call his experience, legal acumen, and consensus-building skills.
At the Wednesday Rose Garden announcement ceremony, Garland called the nomination the greatest opportunity in his life, a "gift." It may be something he ultimately wishes he could return.
The 63-year-old chief judge of the federal appeals court in Washington will take on a role more daunting and precarious than any judicial nominee in recent memory has tackled-- that of a political "pinata" -- as Sen. John Cornyn (R-TX) so bluntly put it.
"Judge Garland is the best political pick the President could make in this unique environment we're in," said one former administration lawyer with knowledge of the confirmation process, emphasizing the word "political."
"And I don't mean that in a bad way. [Justice Antonin] Scalia's unexpected death in an election year really changed the rules for choosing someone for this court" that source added.
The nomination of a Supreme Court nominee in such a charged environment-- following the unexpected February 13 death of conservative lion Scalia-- will test Garland's fortitude. Colleagues praise his intelligence, personal charm, and sense of humor as necessary to navigate his initial meetings on Capitol Hill with senators, a process that begins Thursday.
Senate Republicans who control the chamber have vowed not to give a Garland a hearing, saying the next President-- and by extension the American people-- should have that power.
"In light of the contentious presidential election already well underway, my colleagues and I on the Judiciary Committee have already given our advice and consent on this issue: we will not have any hearings or votes on President Obama's pick," Sen. Mike Lee (R-UT) told Fox News. Lee, a former law clerk of Justice Samuel Alito, vowed not even to speak with Garland. "Any meeting with the nominee only be a waste of the Senate's time."
Anticipating that rhetoric, President Obama again urged lawmakers to put partisanship aside.
"It is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that's going on in the news every day," he said with his nominee standing by him, expressionless. "But to go down that path would be wrong. It would be a betrayal of our best traditions and a betrayal of the vision of our founding documents."
Some of the president's supporters expressed mild disappointment he did not make history and name the first Asian-American to the court. Sources close to the selection process tell Fox News the decision came down to Garland and Sri Srinivasan, who was born in India and raised in Kansas. Both are colleagues on the DC federal appeals court.
"While we are disappointed that President Obama did not nominate an Asian American today, we stand behind his nominee and are confident that when future Supreme Court vacancies occur, Asian Americans will continue to receive this highest level of consideration," said Christopher Kang, director of the National Council of Asian Pacific Americans.
As for Garland-- who would become the fourth Jewish member of the court-- joining fellow liberals Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan-- left-leaning advocates downplayed his liberal record and instead sought to promote his consensus credentials.
"In this moment President Obama was facing a very difficult choice," said Elizabeth Wydra, president of the Constitutional Accountability Center. But by choosing Garland, "That's a pretty smart move on the president's part, and it makes it pretty hard for Republicans to continue their hard line that they wont even meet with this nominee and we're already seeing some cracks in that position."
But conservative groups urged Senate Republicans to hold firm, saying Garland has a clear progressive record, especially in issues like gun rights and executive power.
"There's no way this President would nominate someone to the Supreme Court who he wasn't confident of joining those four extremely liberal judges we already have on the supreme court," said Carrie Severino, chief counsel of the Judicial Crisis Network. "That would make an unassailable five-justice majority for a laundry list of issues."
Already legal advocacy groups have begun scouring Garland's 19-year record on the appeals court, which handles a range of hot-button issues, especially dealing with the statutory limits of Congress and the constitutional limits of the President. It is considered the second most powerful federal court after the one Garland would join. Three current justices-- and Scalia-- had served on the DC Circuit.
His judicial record is reliably liberal, but on some issues Garland sided with more conservative colleagues-- a dynamic similar to what he would face on the current divided 4-4 liberal-conservative majority of the high court. Among the higher-profiled cases he has decided:
Discrimination (Barbour v. WMATA, 2004): Allowed a Washington, D.C., government worker to sue for disability discrimination. He was supported in the ruling by then-appeals court colleague and good friend John Roberts, now chief justice.
Environment (Rancho Viejo v. Norton, 2003): Parted ways with Roberts by refusing to rehear a case over federal protection for the rare arroyo toad, and sided against a California developer who challenged the Endangered Species Act.
Electronic privacy (ACLU v. U.S. Department of Justice, 2011): Concluded information about how and when the government gathers and uses cell phone location data to track certain criminal suspects should be made available to the public.
Drone strikes (ACLU v. CIA, 2013): The CIA must acknowledge the existence of any records related to military unmanned drone strikes aimed at people such as terror suspects overseas, calling the agency's previous denials "fiction." He wrote: "The CIA asked the courts to stretch that doctrine too far-- to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible."
Terror detentions (Parhat v. Gates, 2008): Wrote an opinion slamming the reliability of U.S. government intelligence documents, saying just because officials keep repeating their
Reliability had been the template for Presidents choosing a Supreme Court nominee for more than a quarter century-- someone who may not exactly excite the political base, but would carve a predictable liberal or conservative record, depending on the president making the choice. No surprises, no David Souters was how some conservatives labeled it, a nod to Justice David Souter, nominated by a GOP president who went on the side mostly with liberals on the court.
But now with the nomination of Garland to fill this election-year vacancy, this President also wants something more: confirmability, the best person possible to navigate what could be failed, pointless mission to get a hearing and a vote in the Senate.
His friends privately say Garland was not reticent taking up the challenge, and is fully aware of the obstacles in front of him.
In his White House remarks, the Chicago native made a point to mention his work prosecuting the Oklahoma City bombing case, which included briefing the families of victims about the legal process that would unfold in the federal courts.
He said that approach owed much to public trust.
"People must be confident that a judge's decisions are determined by the law and only the law," he said. "For a judge to be worthy of such trust, he or she must be faithful to the Constitution and to the statutes passed by the Congress."
That emphasis on "trust" will his guiding star in the months ahead, as he and the White House seek a chance to make their case. It may be an argument that will fall on deaf ears, but the political fallout from how all this plays out-- for good or bad-- could be felt in all three branches of government for years to come.