Merrick Garland is not the typical Obama Supreme Court nominee. For one thing, he’s a white male — a profile that Obama has resisted appointing, both to the Supreme Court and to federal benches across the country.
But another is his age: Garland, the chief judge of the DC Circuit Court of Appeals, is 63. He is the oldest Supreme Court nominee to be named since 1971, when President Richard Nixon nominated Lewis Powell, who was then 64.
Presidents typically try to appoint younger judges, since those judges hold lifetime appointments. Court picks represent a major way that presidents can leave an ideological imprint on the country through the interpretation of the Constitution — so it makes sense that they’d want to appoint judges who can be alive to do that work as long as possible.
Antonin Scalia, whose seat Garland would fill if he is confirmed, was only 50 years old when Ronald Reagan appointed him to the bench in 1986. He went on to serve nearly 30 years, before passing away in February.
Even Obama’s last two picks, Sonia Sotomayor and Elena Kagan, were just 55 and 50 at the time of their respective confirmations.
So why would Obama make the choice to nominate a man who is considerably older and therefore able to serve on the Court for a more limited number of years?
There are a couple of possible explanations. The first is that Obama might very well believe Garland won’t be confirmed, in which case it makes sense to use an older, distinguished judge as a sacrificial lamb and allow his successor to elevate a younger nominee next year.
That is probably part of the calculus. But there’s a second, more interesting explanation that illuminates President Obama’s strategic thinking.
It is, simply put, that Garland’s age, like his moderate record, is yet another compromise.
Rick Hasen gets at the idea on his Election Law Blog: "I have suggested (in the last chapter of Plutocrats United) that one way to compromise on SCOTUS nominees is an 18-year term limit," he writes. "Appointing someone who is 63 moves in that direction. It gives the President a win, but one which as a matter of probability and actuary tables won’t be on the Court as long."
President Obama could have chosen a young nominee, one who could have shifted the ideological center of the Court to the left for years, perhaps decades to come. Instead, he has chosen someone who will necessarily curtail his own influence on the Court. It is yet another sign that Obama is really looking to find a compromise candidate that Republicans would find palatable, rather than playing to his Democratic base.