President 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.
Obama lays another egg. Hillary is going to sleaze herself in, so we’ll have more of the same. Perhaps Hillary will get the major economic downturn that some are predicting, and gets impeached. I see no hope, either way.
You can always tell a Harvard man, you just can’t tell him much.
@Renegade
She is better, and wanting to chase Mr. Mousy on the fishing pole, but none of that for a few weeks. Thank you for asking!
As for Merrick, however he may have started out, he has firmly ensconced himself in the elitist class. Harvard. A federal judgeship. Heck look at how Bill Clinton got started. Anyway, give it a day or two and the stories will start to surface how he isn’t as non-partisan as he may appear.
I “know” this because there is no way that Obama is going to pick a fair-minded, non-partisan individual for this post. Everything Obama does, down to going to the bathroom, is based on Democratic party political considerations. I mean think about it. Why is Obama pro-immigration? There is not one school of economic thought, even at Harvard, that maintains if a country has a problem with massive un-employment, and under-employment, that the way to solve it is to bring in millions and millions of mostly unskilled workers from other countries! That idea is laughable and absurd.
All the candidates say that we shouldn’t ship our jobs overseas to foreign workers, yet most of them swallow whole hog the notion that it is just swell to bring those same foreign workers to our country, like you don’t get the same result!
YET, Obama and the Democratic Party leadership are all for it! Why? Because the immigrants can help stuff the ballot box for the Democratic Party, and cause there to be more barefoot, pregnant Democratic Party voters. If Obama would screw over his own race, with their high unemployment, and screw over his own country for cheesy political gain, what in the world makes you think he would nominate somebody for SCOTUS who was non-political??? No. No way. Obama knows something about this guy that we don’t know yet.
IMHO.
Squeeky Fromm
Girl Reporter
Squeeky
First..how’s the kitten?
Second…how do you extrapolate and pejoratively generalize the nominee as a 1%er? Look at his parents and their economic background and how he attained his education and served as a high profile prosecutor and later as a distinguished member of the bench. This man doesn’t have the silver spoon background. What he does have is a solid working history and expressed adulations from both sides of the Aisle. And of course there are his detractors.
As he endures the hearings (if he gets that far), his rulings and other correspondence are legitimately up for grabs.
I just hope (usually in vain) for fair hearings. I marvel that we have people who answer such a call with its attendant risks and subterfuge.
..
My BFF, Penelope Dreadful, just asked me do this cartoon:
https://pansiesforplato.files.wordpress.com/2016/03/merrick.jpg
Squeeky Fromm
Girl Reporter
Point Obama
It’s unfortunate that we always have to discuss SCOTUS in political terms but that’s the sate of
affairs these days.
The President has called the Republican’s bluff. Realizing that McConnell has backed the GOP into a corner on this one, Obama has nominated a true moderate, and an excellent judge to boot. The GOP looks really bad if Garland’s nomination is pigeon-holed. Obama knows this and it is probably the reason he selected J. Garland in the first place, preferring to nominate a far left wing judge if he were not so preoccupied with the politics of the thing and blinding him to what a person of his political persuasion should really want.
Now, it is time for the Republicans to call the bluff. Eat some crow and confirm Garland. Watch Obama’s mouth drop (“Doh”), depriving Hillary of a SCOTUS nominee in the process. Short of resurrecting Scalia, it is about the best result possible for Republicans at this point.
I have appeared before Judge Garland. He is an excellent jurist and a worthy SCOTUS nominee. His appointment would be a throwback to the days when politics mattered little in SCOTUS appointments, read Whizzer White, Sandra Day O’Connor, Lewis Powell, Tom Clark, going all the way back to Oliver Ellsworth. Ok, some of you will argue that politics played a role in their selection, too. Maybe so, but not nearly as much as current SCOTUS incumbents.
Let’s all get on board for a speedy confirmation of Judge Garland.
Reblogged this on Scoop Feed.
When you quit blocking Trump I’ll consider helping.
William H. Hefner 1631 SW Pineland Way Palm City, FL 34990-2779 772-600-8629 304-559-7808
>
“If the senate takes up confirmation hearings between now and the election we just might see a lot of GOP incumbents out of office next January.”
They may lose them anyway.
On an unrelated matter, the two prosecutors in Chicago and Cleveland where the two killings by police occurred lost re-election last night, I believe.
@Justice Holmes
You are trying reverse psychology, but I don’t think it is going to work.
@JRMJ
The only thing that would “grow” one of these la-di-da twits, is if their home gets invaded by feral gangbangers who stole everything, roughed up the whole family, had “fun” with the females, and sicced their pit bull on the family Bichon Frise.
Then, maybe the la-di-da types could muster enough of a sense of realism to support gun rights. But the denial runs so deep in these type of people, that even that might not be enough.
Squeeky Fromm
Girl Reporter
“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.”
However at the end of the sales cycle still sits this shiny used Yugo. As my late father-in-law used to say: “You couldn’t afford it, even if if it was free.” If the senate takes up confirmation hearings between now and the election we just might see a lot of GOP incumbents out of office next January.
Squeeky,
I agree.
He so wants to get another SCOTUS appointment that he caves again to the right wing.
If Republicans refuse to accept Garland, and Hillary wins, then what? I say take him. Take the bait. Obama succeeds in setting a precedent, but the Senate and House can rewrite their own rules at their pleasure. A bird in the hand…….
WTF another Harvard grad??? No wonder the SCOTUS is out of touch with the real world. We need a justice who has lived and been educated out among the normal people of the country. But nope, another 1%er type, the allegedly morally and intellectually superior type. . .Hope and change my rear end!
Squeeky Fromm
Girl Reporter
Maybe he’ll grow in office. Maybe he’ll spot and follow the trend. We can always hope.
https://strikelawyer.wordpress.com/2016/03/16/oh-well/
The worst of both Republican and Democrat worlds: Judge Garland is apparently a supporter of Big Government in all its forms over individual liberty. He has shown a willingness to degrade at least the 1st, 2nd, 4th, and 10th amendments.
Ah, Politics, what an ugly sport it is.
Those involved just revel in it, but the rest of us have great distaste for the dance.