Bench Memos

Law & the Courts

Baseless Claim that President Bush Would/Might Have Nominated Garland

In an op-ed in today’s New York Times titled “Bush Would Have Nominated Garland”, Richard W. Painter, who worked as the ethics lawyer in the Bush 43 White House from 2005 to 2007, claims that President Bush would have nominated “someone like Judge Merrick Garland” if a Supreme Court vacancy had arisen during his last two years in office. He claims that Garland “is just the kind of candidate we [sic] would have advised President Bush to nominate” and “is exactly the type of person who might have been chosen by the Bush administration.”

Let’s set aside for now the dubious ethics of Painter’s leveraging his supposed insider knowledge to paint the Bush White House in what many would consider a disparaging light.

Shannen W. Coffin, as counsel to Vice President Cheney, was a member of the committee that deliberated about prospective judicial nominees. Shannen writes me:

Richard Painter’s suggestion is nonsense. President Bush had a principled approach to judicial selection. He may not have gotten it right in every instance, but he certainly tried. And choosing a “compromise” or “moderate” candidate was not his objective, since he recognized that politics is not the job of a Supreme Court justice. He wanted candidates that respected the letter of the constitution and of statutes. Someone who would not legislate from the bench. His list did not change when Republicans lost the Senate in 2006.

Another White House lawyer, who was also a member of the White House’s judicial-selection committee, tells me that Painter was not a member of that committee and that his ethics role involved things like reviewing candidates’ financial-disclosure statements—hardly something that would give him deep insights into candidate-selection strategy (much less the authority to say what “we” would have done). This second lawyer likewise considers it farfetched that President Bush would ever have nominated Garland or “someone like” him.

Even if anyone had been inclined towards finding a “compromise” candidate, the Harriet Miers fiasco, with all its attendant political costs, would have provided a powerful warning against picking a nominee who would demoralize the conservative base. Indeed, it’s very strange that Painter invokes President Reagan’s disastrous selection of Anthony Kennedy, as the fallback after the Bork nomination failed, as a model that the Bush White House would have wanted to follow.

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