Obama administration legal officials thought the former president's selection of Judge Merrick Garland for the Supreme Court's vacant seat was motivated by politics, newly revealed internal emails show.
Senate Democrats fought President Trump's pick of Justice Neil Gorsuch to replace the late Justice Antonin Scalia tooth and nail, citing Republicans' obstruction of Garland's nomination as a shameless political ploy. But private emails among the lawyers and officials working in former President Barack Obama's government show that they thought Obama picked Garland because of politics — not because of Garland's legal work and philosophy.
America Rising, a conservative group that helped successfully boost Gorsuch to the high court, collected a trove of documents in preparation for a fight over Garland's nomination that never fully materialized. But more than 100 Freedom of Information Act requests America Rising submitted to federal and state government agencies produced new insight about the Obama government's view of the nominee.
The talking points circulated by the Obama White House on the day of Garland's selection included internal emails that show that Democrats wanted to sell Garland as a "meticulous jurist with a knack for building consensus" that won him "bipartisan praise." The talking points also directed the Obama Democrats to comments lauding Garland from Republicans such as Utah Sen. Orrin Hatch and Iowa Gov. Terry Branstad.
"YOU CRUSHED THIS!" wrote Denis McDonough, Obama's chief of staff, to the White House team in a "Nightly wrap email" obtained by the Washington Examiner.
"Today was a great day thanks to that work and we are already seeing progress — let's keep it up."
The talking points also pointed to complimentary comments from well-respected figures in the right-leaning legal community such as Supreme Court Chief Justice John Roberts, former Scalia law clerk Ed Whelan and Judicial Crisis Network chief counsel and policy director Carrie Severino. The Judicial Crisis Network spearheaded a multimillion-dollar effort of conservative groups to help confirm Gorsuch to the high court.
"Today, the president fulfilled his constitutional responsibility by nominating to the Supreme Court an eminently qualified American who deserves a fair hearing, and an up-or-down vote," reads one talking point.
"Garland has distinguished himself as a jurist who plays it straight and decides every case based on what the law requires. In his own words: ‘The role of the court is to apply the law to the facts of the case before it—not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinions on the issues of the day,'" reads another.
The U.S. Patent and Trademark Office's top lawyers were less than enthusiastic about Garland on the day Obama named the judge to fill the Supreme Court seat.
Nicholas Oettinger, patent and trademark office senior counsel, called the Garland selection a "tactical choice" in an email to Jennifer Seifert, an associate counsel in the patent and trademark office. Oettinger told Seifert he thought it would be hard to predict "how much noise" the Garland selection would make in March 2016, months before Trump's victory over Democratic presidential nominee Hillary Clinton.
"I'd prefer someone a bit more liberal, but I'm not disappointed," Seifert replied. "Certainly a decent choice politically. I'm grabbing my popcorn for the show, for sure."
Oettinger replied to Seifert that he thought there may have been some value in Obama's picking a Supreme Court nominee without any intention of that person ever joining the high court.
"I can see the wisdom of appointing Garland now with the thought in mind that it might not happen now, but instead the choice will create pressure, and then someone who takes office in 2017 might appoint someone else for that seat (a nominee not having been put through the wringer this time)."
On the same day, news of Garland's nomination spreading at the Nuclear Regulatory Commission prompted that agency's top lawyers to focus on Garland's age.
Inside the Justice Department, the U.S. Attorney's Office for the District of Columbia tepidly celebrated the selection.
"I love that [Obama] gave Republicans someone they almost can't deny — right??" emailed an official whose name was redacted. "I hope."
Wrong. Republicans did reject Garland, without holding a hearing or a vote.
But the prospect of the GOP's blockade of Garland did not stop top Democrats from celebrating the Garland selection.
Little more than one year after Garland's nomination, Gorsuch joined the high court in the seat Obama picked Garland to fill.