Originally Published on April 16, 2016.

President’s court choice shows he still lacks jugular instinct

President Barack Obama has nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit to be an associate justice of the Supreme Court and fill the seat of the late Antonin Scalia. This pick shows one thing the president has learned from more than seven years of Republican obstructionism, and, sadly, what he hasn’t.

The GOP-controlled U.S. Senate’s refusal to hold a hearing and vote on this spectacularly qualified jurist before November’s election will not only reduce Republicans’ small and shrinking chance to regain the White House but jeopardize their control of the Senate. Obama understands this. The careful, deliberate method he employed in this choice is evidence of a resolve to not assume any reasonableness, responsibility or shame from the Senate majority — as he has in the past — and this time administer punishment for the intransigence.

The blocked nomination will play out with the Democratic presidential nominee winning the election by a margin larger than had Senate Republicans fulfilled their constitutional responsibility to advise the president and consent — or not — in an up-or-down vote. Immediately after the election Judge Garland will ceremonially be confirmed, because he is respected by officials in both parties, as well as conservatives, moderates and liberals. The confirmation process will be cursory, partly because of the judge’s stellar record but also because the process has been reduced to either coronations — as this one will be — or politicized wars, like Clarence Thomas’ confirmation and Robert Bork’s rejection. The hearings have become a show with senators publicly committed to voting yea or nay before the nominee or any witness has testified.

In Garland lies the lesson Obama has not learned. As good and respected as Garland is, he is not Obama’s first choice. Obama and other recent Democratic presidents have not nominated their first choices for the high court, while Republican presidents have consistently chosen ultra-conservative jurists likely to advance right-wing policies and interpretations of the Constitution.

These include Scalia, Thomas, Samuel Alito and the rejected and withdrawn nominees, Bork and Douglas Ginsburg in 1987. Democratic presidents nominated Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — social liberals, to be sure, but moderate to mildly conservative and business-oriented when cases involve regulation, property rights, state vs. federal authority, and the balance of power among the three branches of our national government. The electorate usually focuses on liberties cases such as Heller (the right to bear arms) Obergefell (same-sex marriage) Citizens United (corporate free speech) and Roe v. Wade (the right to privacy and dominion over one’s body). However, in the vast majority of Supreme Court cases with profound consequences for our lives, Democrat-nominated justices whom Republicans quietly applauded as defenders of the corporate/regulatory/property rights status quo tended to side with those chosen by Republicans.

Garland is not the justice Obama wants as his last big act. He passed over Garland to nominate Sotomayor and Kagan. All that has happened since is Garland is now 63 years old. A prime objective in picking a justice is relative youth. Scalia, who served nearly 30 years, was seated at age 50. John Roberts and Alito, picked by George W. Bush, were 50 and 55 respectively. For that and other reasons, Obama’s real preference was Judge Padmanabhan Srikanth “Sri” Srinivasan, who is 49. Among the other reasons was the tally when he was confirmed to the D.C. Circuit bench (97-0), including affirmative votes by Sens. Mitch McConnell, Charles Grassley and Ted Cruz, and the fact that he would have been the Court’s first Asian-American. Obstructing him would have alienated another significant, rapidly growing minority group by the GOP and led to even more decisive victories this November.

Why would the president pass over his first and obvious choice for one who has Republicans breathing a sigh of relief? It’s the Obama signature mistake, similar to when he negotiated Obamacare and took out the Medicare-like public option — the very type of health care coverage he favored. Obama still wants to be measured, moderate and compromising, even when faced with hostile and uncompromising partners.

I love this man and have been proud that he is our president, but he doesn’t want, or seem to know how, to really win.