Obama’s Supreme Politics
How GOP Senators should handle Merrick Garland’s nomination.
March 16, 2016 7:19 p.m. ET
President Obama’s nomination of Merrick Garland for the Supreme Court is meant to put Senate Republicans on the spot by elevating a well-qualified 63-year-old judge not known as a progressive firebrand. Republicans aren’t likely to fall into this trap, and Judge Garland’s jurisprudence suggests they’re right—with a caveat we’ll get to later.
The common wisdom is that Judge Garland’s nomination presents Republicans with the most moderate option they’ll get from a Democratic President. Maybe, maybe not. But we can’t think of a single issue that has divided the Court on which Mr. Garland would reliably vote differently from the four liberal Justices already on the bench.
Judge Garland’s 19-year tenure on the D.C. Circuit Court of Appeals demonstrates a reliable vote for progressive causes, with the arguable exception of criminal law. Two issues in particular make the point: the Second Amendment and deference to the growing power of the administrative state.
In 2007 Judge Garland voted for a rehearing en banc after a three-judge panel invalidated Washington D.C’s handgun ban. In 2000 Judge Garland was part of a three-judge panel that allowed the FBI to temporarily keep files with information from gun purchase background checks. In his dissent, Judge David Sentelle wrote that the Attorney General was not only making “an unauthorized power grab, but is taking action expressly forbidden by Congress.”
Judge Garland has also shown a pattern of over-deference to administrative agencies including the EPA. Scotusblog’s Tom Goldstein points out that Mr. Garland has strong views on agency deference and “in a dozen close cases in which the court divided, he sided with the agency every time.”
In an especially notable case, Judge Garland dissented when the D.C. Circuit struck down the EPA’s egregious regional haze rules (American Corn Growers v. EPA, 2002). Excessive judicial deference to regulators is especially dangerous now given the Obama Administration’s unrestrained use of executive power to rewrite statutes and dare Congress to stop it.
In his remarks Wednesday, Mr. Obama praised Judge Garland for “building consensus” among colleagues and showing an ability to “assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign onto his opinions.”
But that’s also what President Bill Clinton said when nominating Ruth Bader Ginsburg in 1993. Mr. Clinton said then Judge Ginsburg was a “moderate” who was “balanced and fair in her opinions” and would be “a force for consensus-building on the Supreme Court, just as she has been on the Court of Appeals.” Today, Justice Ginsburg is the most liberal member of the Court and uses her consensus-building skills to keep fellow liberals in lockstep.
Justice Stephen Breyer is often considered the most moderate liberal on the current Court. But it doesn’t show much in his opinions. According to Scotusblog, between 2011 and 2014 Justice Breyer voted with the three other liberals in about 80% of 5-4 cases.
Those percentages are even higher
in the most politically freighted cases. In the past few years, the four liberals voted together on same-sex marriage (Obergefell v. Hodges), ObamaCare (Burwell v. Hobby Lobby), unionization of home workers (Harris v. Quinn), free speech on license plates (Walker v. Texas Division), the Voting Rights Act (Shelby County v. Holder) and campaign restrictions in judicial elections (Williams-Yulee v. Florida Bar), among many others.
Judge Garland would be a reliable fifth vote on all of these legal issues.
Merrick Garland’s nomination is nonetheless intended to make the Senate’s opposition seem unreasonable and make the battle about the Senate instead of the judge. His age is also meant to present a political riddle for Republicans who increasingly fear that their presidential nominee may lose. Is it better to have an older judge whose tenure might be shorter than that of other, potentially more radical nominees who Hillary Clinton might nominate?
Even a 63-year-old can stay on the bench for a generation these days, but no matter. Senate Republicans have staked out the principle that voters should have a say in the next Supreme Court nomination via their presidential choice. The Senate should spare Judge Garland from personal attack by refusing to hold hearings.
But if GOP Senators up for re-election want to be more conciliatory, they could say they regard Judge Garland as a suitable choice for a Democratic President and would be happy to vote for him in a lame-duck session—if Mrs. Clinton wins the election. That would be standing on principle and calling Mr. Obama’s bluff.
http://www.wsj.com/articles/obamas-s...ics-1458170388
