Merrick Garland would come to the Supreme Court with credentials worthy of Louis Brandeis and Felix Frankfurter — the two great early occupants of what was once called the court’s “Jewish seat”: Harvard College valedictorian, magna cum laude, than which no one graduates higher, at the Harvard Law School; a little high-end law practice; a little Harvard teaching experience; chief judge on the D.C. Circuit Court of Appeals.
Of course, with Justices Ginsburg, Breyer, and Kagan already sitting, this would be the fourth Jewish seat. Whatever.
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Will Mitch McConnell & Co. have the wherewithal to refuse even to talk to him? No doubt, there will some who say that they are simply adhering to the newly invented principle that, regardless of who a sitting president might nominate during his last year in office, it should be up to the next president to fill a Supreme Court vacancy. This would be similar to the species of reasoning behind the 23 nay GOP votes Garland received when President Clinton nominated him the D.C. Circuit 19 years ago: that the D.C. Circuit doesn’t need an eleventh judge.
I suspect, however, that this argument will not fly — as that one didn’t — with a significant number of Mitch McConnell’s troops, and not just those who are in serious re-election battles this November. That’s because, I predict, there will be pressure on them from the Jewish communal leaders the GOP has been at such pains to court in recent years.
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With Donald (“I’ll be neutral between the Israelis and the Palestinians”) Trump now the GOP’s presumptive presidential nominee, those leaders will be doing their best to get back into the good graces of the Democratic Party. How better than by standing up, publicly and privately, for giving Merrick Garland a full and fair hearing? Likewise, the prospect of Trump as standard bearer will weaken the GOP senators’ resolve to hold fast for the next president.
Religious identity politics may be a dead letter in electoral politics this year, but not, I’m guessing, in Scotus appointment politics. Keep your eye on the ADL, the American Jewish Committee, the American Jewish Congress, B’nai B’rith, and the Jewish Council for Public Affairs. And last, but perhaps not least, on the Republican Jewish Coalition.