Schrodinger’s Justice
President Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland to replace the late Justice Antonin Scalia could dramatically shift the Supreme Court’s center of ideological gravity. Senate Republicans have vowed to obstruct Obama’s appointment by any means necessary. Judge Garland, however, is probably the best the GOP could hope to get from a Democratic president — a judge with a bland ideological profile and a prosecutorial background. How progressives are reacting to the nomination depends to a great extent on whether or not they believe Garland will ever take the seat.
Progressives, in general, have responded tepidly to the prospect of Judge Garland as our next Supreme Court Justice. For starters, he’s a white man, and he’s unusually old (63) for a nominee in the post-Bork era of ideological Court-stacking. Deeper objections focus on Judge Garland’s ideological substance, or lack thereof. Despite almost two decades on the Court, he has written almost nothing to stir the progressive heart. Worse, his prosecutorial background reveals a law-and-order fervor that his judicial tenure backs up. Judge Garland has been tough on criminal defendants and deferential to the government on national security. The Scalia vacancy gives a Democratic president a chance to shift a seat from hard right to hard left. For many progressives who contemplate Judge Garland as an actual, sitting Supreme Court Justice, this looks like a wasted opportunity.
However, the Garland nomination may not amount to a real Supreme Court appointment. If the Senate GOP leadership stands firm (always a questionable bet), Judge Garland will never even get a Judiciary Committee hearing. That reduces the nomination to a political play, and judged as such it looks fairly brilliant. President Obama could have nominated a woman and/or a person of color, whose snubbing by the Senate likely would have fired up the Democratic base. But the President’s timing in announcing the nomination, after the Florida and Illinois primaries solidified Donald Trump’s position as the Republican presidential frontrunner, seems purposeful. If Trump gets the GOP nomination, the Democratic base won’t need firing up, while the spectacle of Senate Republicans’ obstructing a conventionally hyper-qualified Supreme Court nominee could help animate Democratic-leaning independent voters. That’s an especially useful play when several of the putative Senate Republican obstructors are facing tough reelection fights in blue and purple states.
The key variable in progressives’ thinking about the Garland nomination, then, appears to be whether the nomination is alive or dead. Unfortunately, our careening political culture renders that question all but unanswerable. Austrian physicist Erwin Schrodinger more or less anticipated this problem. In arguing about the idea of quantum superpositions (basically ambiguous physical states), Schrodinger introduced a famous thought experiment in which a cat is placed in a steel box with a radioactive atom that might or might not decay, emitting fatal radiation and killing the cat. Would the cat, in that scenario, be both alive and dead until someone opened the box and observed the cat’s condition? Schrodinger didn’t think so — that was his point — but his metaphor for perfect ambiguity caught on. The political superposition of Merrick Garland’s nomination makes him Schrodinger’s Justice.
The cat metaphor for the Garland nomination becomes more interesting, and perhaps more useful, if we extend it. What do you get when you open Schrodinger’s box?
Well, you may just get a dead cat (and a nasty radiation burn). How will the cat’s death affect the world? That depends on all sorts of information with which the metaphor doesn’t concern itself. The political fallout from a failed Garland nomination should help the Democrats in November. Still, choosing an apparently moderate, older white man to take the fall is a risky and possibly suboptimal political strategy. A Trump nomination may give Hillary Clinton all the opening she needs with moderate swing voters, while her shortcomings as a candidate may limit her appeal to the progressive base. Moreover, the Republicans could call President Obama’s bluff, caving on Garland in a way that would showcase the GOP to voters as more reasonable than principled. Even a partial capitulation, letting endangered GOP Senate incumbents break dramatically from the Senate leadership’s obstructionist strategy, might be enough to save the Republicans’ majority.
On the other hand, opening the box may reveal a living cat, and cats are notoriously inscrutable. Is Merrick Garland really such a bad bet for progressives? He’s a brilliant jurist who would immediately command respect on the Court. He’s a thoroughly politically connected Democrat, the sort of person whom it’s quite hard to envision voting to uphold abortion restrictions or strike down campaign finance laws. His law-and-order fetishism isn’t ideal, but it might matter less than we think. The legal establishment is rapidly embracing criminal justice reform; a Justice Garland might adjust pragmatically to new times. The last time I was as disappointed in a Democratic Supreme Court pick as most progressives seem to be with the Garland nomination was when President Clinton picked Stephen Breyer. Justice Breyer is no William Brennan, but then neither is anyone else who joined the Court after William Brennan. Breyer has emerged as an almost automatic liberal vote on the Court, an intellectual leader of the liberal wing, and a pugnacious scrapper in key ideological battles. In retrospect that outcome isn’t startling, and Judge Garland seems reasonably likely to follow a similar trajectory. As for his age, turning 80 in seventeen years could set him up well for replacement by the next (post-Clinton) Democratic president.
If thinking about the nature of Schrodinger’s cat doesn’t resolve our uncertainties about the Garland nomination, perhaps we should think about the nature of Schrodinger’s box. The idea of putting a cat in a steel box with a 50–50 chance of irradiation makes a decent illustration of progressives’ complicated, perhaps hazily formed expectations for this Supreme Court nomination. We’ve been playing defense on the Court for almost a half century. We’ve diversified the Court demographically, and we’ve won some momentous cases from our defensive posture. We haven’t, however, had occasion to grapple with how a majority liberal Supreme Court can and should deal with today’s distinctive flashpoint issues, partisan alignment, and civil society makeup. To what extent and in what ways should a liberal Court promote a progressive agenda? What progress do we think the Court could advance, and what goals should instead be left to the electoral process and/or social movements? How will conservative Justices — led, in a nearly unprecedented alignment, by a Chief Justice in the Court’s ideological minority — approach their time in the wilderness, and how should a liberal majority prepare to respond? What, in short, do we affirmatively want Merrick Garland, or any progressive Justice, to be and do in an age of renewed opportunity? How progressives evaluate Merrick Garland ultimately depends on what sort of box we put him in.
