The Shrewd Politics Behind President Obama’s Supreme Court Pick

The longer President Obama stays in office the more shrewdly political he becomes. In his first six years in office he eschewed the dirty work of politics, he refused to twist arms or rap knuckles in an effort to secure the votes he needed on a bill, and he neglected the back-slapping and glad-handing required to develop allies on Capitol Hill. Obama still does neither of those things well, he’s simply too much of a chilly academic to engage in the hard work of political diplomacy.

But he’s become increasingly adept at maneuvering around the legislative process in order to get his agenda passed. Much of the work he’s done over the last year have been agency regulations, executive actions and executive agreements, none of which are actual laws.

Take, for instance, the Democrats cap-and-trade climate proposal, which was dramatically rejected by Congress and the American people. President Obama himself put the final nail in the coffin when he opted to tell the truth about how much the scheme would cost (we told you he wasn’t shrewd).

“[E]lectricity rates would necessarily skyrocket,” the president said in 2008. “[W]hatever the plants were, whatever the industry was, they would have to retrofit their operations. That will cost money. They will pass that money onto consumers.”

Rather than hone his sales pitch, President Obama turned to the Environmental Protection Agency (EPA) to come up with a so-called Clean Power Plan, which twists the foundations of the Clean Air Act to require states to reorganize their electrical power mix and electricity usage. In short, the EPA commands states to come up with a package of laws to meet a carbon dioxide emission target. If the EPA approves the plan, the state would have to impose those laws. If it doesn’t then the EPA threatens to impose its own federal plan, which will be much more stringent.

There’s only one big problem with this ambitiously bureaucratic premise: The EPA admits that it has no statutory authority to impose the measures it is demanding the states to take.

Obama’s political stratagem was so plainly unconstitutional that Larry Tribe, who is known as a liberal lion of constitutional law, who worked for Obama’s Justice Department, and who taught taught the nation’s first environmental law class, has argued vociferously against the regulatory power grab.

“Frustration with congressional action cannot justify throwing the Constitution overboard to rescue this lawless EPA proposal—especially when the EPA itself, through Senate testimony by its administrator, Gina McCarthy, has touted its proposal as “an investment opportunity” that isn’t really “about pollution control” at all,” Tribe wrote in the Wall Street Journal.

But this is not a post about the Clean Power Plan or President Obama’s energy agenda. This is a post about President Obama’s canny choice for the next Supreme Court vacancy.

Nearly every media outlet is touting Merrick Garland as a moderate justice, an accurate reflection of his overall record. But what if President Obama isn’t worried about Garland’s overall record, but is nominating him with certain express purposes, namely the protection of his regulatory agenda? When viewed from that lens, Garland transforms from a slightly-left-of-center jurist to a wild-eyed defender of Obama’s legacy. Take, for instance, this article from New York Magazine in 2010:

On some of the most important issues facing the court—the environment and labor law, to name two—Garland is every bit as progressive as Stevens, and much more so than the older judge was when he arrived on the high court. And Garland’s tendency toward statutory deference (a conservative principle, in the proper meaning of the term) should be seen as a crucial quality by Obama, among whose main goals with this pick must be to protect the legislative gains of his presidency. Among card sharks, there are two types of players: those who focus on the cards in their hands, and those who strategically play the table. (Guess which type is more successful.) If Obama is reading the table now, I think, Garland should be his man—and it’s worth noting that, by every account, the president has always been a hell of a poker player.

If Garland’s record is defined by anything it is his incredible deference to executive actions and agency interpretations. That may not be sexy, but it’s incredibly wily. For months we’ve been writing that Obama’s record, which is built on regulations and executive actions, has been written in sand, easily washed away by the political tides. But the confirmation of Garland very quietly could cast Obama’s record in stone.