Jeffrey Toobin: Sure, Merrick Garland is qualified, but this is politics

Who is Merrick Garland?
Who is Merrick Garland?

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Story highlights

  • Jeffrey Toobin: Supreme Court nominee is unlikely to survive political maelstrom
  • Toobin says Republicans will likely not bend and allow hearing or vote on Merrick Garland
  • Cost of allowing Obama pick who could tip court is too great for GOP, he says

Jeffrey Toobin is CNN's senior legal analyst and author of "The Oath: The Obama White House and the Supreme Court." The opinions expressed in this commentary are solely those of the author.

(CNN)Should Merrick Garland's friends be offering him congratulations -- or condolences? After a distinguished career in public service, Garland has been tapped for the legal profession's highest honor -- to be a Supreme Court justice. But President Barack Obama's nomination thrusts Garland into a political maelstrom he is unlikely to survive -- at least as a judge on the nation's highest court.

Garland, who is 63, has had a storybook career. He is a graduate of Harvard Law School (like the justice he would be replacing, Antonin Scalia), was clerk for a pair of legendary judges (Henry Friendly and William Brennan), and a partner at a prominent law firm -- which he gave up to work as a line prosecutor in the District of Columbia.
    Merrick Garland tears up during nomination
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    He was a Justice Department official and then judge for the last 18 years on the second most important court in the nation.
    The issue of Garland's qualifications to be on the Supreme Court is beyond question.
    But Republicans have said that because Obama is in the last year of his term, the seat on the court should be determined by the voters -- who will be choosing the next president. They have vowed, in very explicit terms, to refuse to give Garland a hearing or a vote.
    Most Republican senators will refuse even to meet with him. And while Republican senators have so far avoided attacking Garland's qualifications, conservative interest groups are already pledging to run television advertisements portraying the judge as a mindless liberal and Obama stooge.
    It's all very ... political. But the Supreme Court has always been as much a political body as a legal one. Supporters of the President, and of Garland, are seeking to impose the maximum amount of political pain on their opponents in the Senate.
    Mitch McConnell responds to Supreme Court nomination
    Mitch McConnell responds to Supreme Court nomination

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    Democrats have already started calling out their Republican counterparts as do-nothing obstructionists. This is how the process will play out, and the outcome will depend on the politics. Do Republicans stick with their base and refuse a vote? Or do they cave under criticism and allow Garland to proceed through the process?
    The odds strongly favor continuing Republican solidarity. The seat is the tipping point to a Democratic majority on the court, and the GOP will put up with a lot of heat to prevent the loss of the court for a generation.
    True, a President Hillary Clinton might pick someone even more liberal, but better to risk a fight later than lose one now. When it comes to the Supreme Court, political calculation is nothing new. There were no good old days.