Merrick_GarlandPresident Barack Obama today surprised many by nominating the moderate Chief Judge of the United States Court of Appeals for the District of Columbia Merrick Garland. Garland is unlikely to thrill liberals. He is fairly conservative on criminal cases and tends to favor government interests. Conservatives are not going to like his vote to move to reconsider the case that became the historic Heller decision that recognized the individual right to bear arms under the Second Amendment. However, Garland moves virtually everything off the table for the Republicans. While a moderate, he is as far right as a Democratic president could go.

In some ways, the Garland nomination seems to take a chapter from the sales book for car dealers. You take away every possible barrier while adding every possible extra from bucket seats to undercarriage rust proofing to leave only the question of whether you want to buy a car or not. Garland is a moderate who will be viewed by many liberals as too conservative. His age (63) and jurisprudence makes him less likely to be a truly transformative or legacy appointment. If you are looking for the lightest jurisprudential footprint, Garland would be that nominee. The President seems to be inviting the GOP to take out this nominee for a drive and “you will just love this ride.” They are clearly not buying however.

In truth, Garland would move the Court to the left by the mere fact that Scalia was so far to the right. He could indeed flip the result on campaign financing, gun rights, affirmative action and abortion. He would also likely support executive powers and federal agencies generally, but not necessarily uniformly. Since Scalia was a big supporter of the Chevron doctrine (as I discussed yesterday in testimony before Congress), this may not move the needle significantly and would not change administrative law on the issue of deference to federal agencies. Notably, however, in 2013, Garland voted against the administration on the secrecy surrounding drone strikes. He also, in 2008, he ruled that suspects could not be held as enemy combatants without an evidentiary foundation and, in 2004, ruled against the Environmental Protection Agency for the delay of enforcement of ozone standards in the District of Columbia.

Judge Garland’s vote to rehear the Parker (which became Heller) was joined by three other judges (against six rejecting a rehearing).  As I discussed on NPR, he could certainly address that vote in a confirmation hearing if he had the opportunity.  Judging from his past cases, there is a general view that Judge Garland did not agree with the general premise of the constitutional claim that this is an individual right to bear arms. Yet, Judge Garland could also argue that he did not feel that the existing case supported such a ruling and that as a lower court he felt constrained in reaching such a decision.  However, the constitutional question was viewed by many as an open one — even though both sides believed strongly in the merits of their respective interpretations.  He could also have disagreed with the analysis as opposed to the result.  The oral argument primarily concerned the threshold question of the constitutional claim on the interpretation of the second amendment.  Obviously, the vote raises a serious flag for those who do not want to risk undermining Heller, which is one of another of constitutional cases that could easily flip with the addition of the new justice.  The general view is that Garland voted on the merits. If that is the view of conservatives, it could prove a barrier in a post-election push for his confirmation (if Hillary Clinton is elected).  Indeed, if the NPR takes the view that he is anti-gun rights, it could “score” the confirmation vote — a serious threat for some senators of both parties.

Ironically, as I mentioned on Fox this morning, the moderate record of Garland may support the GOP in arguing that this is not about ideology but timing. Sen. Mitch McConnell has already portrayed this as “the Biden rule” in citing the position opposing consideration of a nominee in the final year. President Obama himself supported the filibuster of Justice Alito. McConnell has mapped out a position that this is not about “a person but principle” and that is unlikely to change.

Notably, Garland would continue the lock of the Court by Harvard and Yale graduates. It remains highly frustrating to many academics to see this absurd exclusive club. This county is the leader of the world in legal education with dozens of world-class law schools. Yet, once again, President Obama has stayed with these two schools.

I will be continuing commentary today at CNN, FOX and BBC but may blog from the road.


  1. Without commenting on unsubstantiated verbiage in this thread, yes, Squeeky, it’s a problem and worthy of its own thread, The Economist and several general science magazines have reported on this. There are multiple reasons why this happens, and here’s a recent article, one that focuses on psychology studies and the use of p-values. For anyone who is interested. Peer review may be broken.

  2. @David Benson

    If one only reads “substantiated verbage”, then there would be little point in reading anything outside of perhaps 40% of the elite scientific journals. That is because even most scientific studies can not be replicated. Here, let me substantiate that!

    Maverick researchers have long argued that much of what gets published in elite scientific journals is fundamentally squishy — that the results tell a great story but can’t be reproduced when the experiments are run a second time.

    [No, science’s reproducibility problem is not limited to psychology]

    Now a volunteer army of fact-checkers has published a new report that affirms that the skepticism was warranted. Over the course of four years, 270 researchers attempted to reproduce the results of 100 experiments that had been published in three prestigious psychology journals.

    It was awfully hard. They ultimately concluded that they’d succeeded just 39 times.

    The failure rate surprised even the leaders of the project, who had guessed that perhaps half the results wouldn’t be reproduced.

    Now that is with “science stuff.” What do you figure the numbers are going to be with non-science stuff, like is Merrick Garland an average joe, or a High Priest of the Illuminati??? My guess is, we can’t even guess! Which is also known as “The Human Condition.” Which we just got to live with. I guess. Maybe we need a study???

    Squeeky Fromm
    Girl Reporter

    PS: Oh, since you used the word, “verbage”, which is kind of unusual, have you ever heard of a book called, “A Critique of Pure Verbiage”??? by Ronald Englefield. I have three of his books, and that one is his best. It’s short, and highly entertaining. I guess. I can’t substantiate that. But, a lot of people seem to like it! Amazon has it.

  3. Gone off topic about half way down so I quit reading the unsubstantiated verbage.

  4. Many African American communities do not cooperate with the police for myriad reasons. Probably wouldn’t be called an assimilation problem.

    First generations have always been slow to learn English. Their children all speak English if they are born here. And they will all have more skills than my kids have. They will be fluent in two languages. If they came with their parents, they will need language classes for a year. That’s it. And then they all will be playing soccer and listening to rap like all the rest of the kids.

    They tend to live in their own communities? Have you visited the southside of Chicago? How about southie Boston? How about Skokie? How about all those kids who are born, grow up, and die in Hinsdale? Why aren’t they assimilating into more ‘brown’ communities? After all, soon American will have a majority of brown people. Hundreds, if not thousands, of African American communities exist down south. Is that a recent assimilation problem? How about the Cajun communities in Louisiana?

    All those signs in foreign languages? Count them as assimilated. They are small American businesses that keep a community growing. Plus, you can experience some fabulous food. I guess you would call it “Oriental” food, although most Americans would call it Asian. They pay taxes, send their kids to school, and those kids go on to college, become teachers, doctors, and engineers, and move out of the old neighborhood into Naperville, and Evanston, and Des Plaines.

    America is a wonderful place. And it is still a melting pot. And little kids who can’t speak English soon can, they grow up, move away, start families of their own, and their kids grow up and marry the white girl or the brown boy, or the Jewish girl down the block.

    Just like always. It’s all good.

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