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.
I guess Sqeeky is unaware that immigration can give a strong boost to dying rural communities and are invaluable in countries that are suffering from low birth rates. Immigration would have gone a long way toward helping Japan recover.
@Chicago Adman
I think he is with the 1% where it really counts, his heart! And just because the NYT calls him “moderate” doesn’t mean squat. My goodness, I am sure they think Bill Ayers is a namby-pamby. One Trump fan socks a disrupter and they wet their pants, while lauding the fascist thugs in Chicago who shut down a pilitical rally. There is a reason why people trust the Media, less than they do Congressmen.
Squeeky Fromm
Girl Reporter
@ Renegade
I’m not aware of any specific definition of 1%er. Some may see it as those in the top 1% financially. I see it as those with the highest access to power. Thus a kid whose family is quite wealthy because his father owns a chain of auto supply stores might have wealth, but not necessarily access to power if he goes to a state college and law school.
On the other hand, someone like Obama, born into the educational elite, was always a 1%er. His family wasn’t wealthy, but his mother was a Ph.D anthropologist and father a Harvard educated economist. He attended a highly prestigious prep school and being part black assured his access to Harvard, which in turn assured his access to networking with other elites.
If I were accused of a crime, I’m not so certain that I’d want a 1%er to represent me. It depends on who it is. Michelle Obama was born to lower-middle class parents. Her father worked for the water company and her mother was a secretary. They owned their home in So. Chicago. Because she was black, she went to Princeton and studied sociology. Her senior thesis was on ‘the black experience at Princeton.’ Basically she went to one of the world’s top universities and used that opportunity to study about herself. After Harvard Law, she worked as an attorney for about a year, then dropped out to work in “community outreach” for the Chicago hospital system. A total waste of a Harvard education. So no, I wouldn’t want her to represent me because she doesn’t seem to be willing to work very hard.
On the other hand, Rod Blagoyavich was born into very similar lower-middle class circumstances. His father was a steel worker and mother a ticket-taker for the train station. They spoke Serbian at home. But as a white ethnic, he did not have the same access to the Ivy League. He went to Pepperdine Law School in CA. But he was highly ambitious and a fighter. He was a prosecutor and eventual district attorney; senator and governor. Unfortunately his power went to his head. He was ridiculed by the elites in Chicago like Obama and Rahm Emanuel because he didn’t share their Ivy League pedigree. When he got arrested for political horse-trading he was slammed with an extraordinarily harsh sentence. But if I were accused of a crime, yes, I would want him to defend me because he is a fighter and earned everything he got in life.
People who float through on inherited wealth, whether it be financial wealth or “most favored ethnicity status” usually aren’t used to working that hard. Clarence Thomas and Michelle Obama may have Ivy League law degrees because they inherited the “ethnic rewards card,” but I don’t see either of them as having ever busted a sweat in the real world. Blagoyavich earned his college tuition as an amateur boxer and spent summers on the Alaska pipeline.
So there are various ways to become a 1%er, and probably different definitions, but I define it as someone who has access to power, and that is generally determined by having graduated from a handful of elite colleges, much like in England.
Should have said: he was in the 1% – with his brain.
Tin
Lincolnwood in the 50s and 60s, and remains so today, as solid white jewish middle class. Negligible, to the point of non-existence, Asian population in the 50s and 60s. Many were small, emphasis on small, businessmen – vast majority of wives were stay at home. His dad’s business started out in his basement and never gained any formidable reputation. I know. I worked at Leo Burnett in Chicago. His time at the high power law firm came as a result of his academic achievements – not through legacy.
Way, way, way off to say Garland was of the 1%.
@Ralph Adamo
Actually, now that you mention it. . . well you just have to read the end credits. . .This was back in the day when Xtranormal was up and rolling, but the closed down the site. I was just getting into it, and learning the system. Darn it. I really miss that place.
https://www.youtube.com/watch?v=_ylMWBzAEzc
Squeeky Fromm
Girl Reporter
Squeeky, thanks for the laughs! However, these days, you need to include a notice that “no cartoon characters were injured in the making of this cartoon.” For the inspiration for this political version of Peanuts, see:
SQUEEKY’S right. Another loyal servant of the 1% and the “only democracy (sic) in the Middle East”.
It is simple. I would hold hearings to keep Obama from rescinding the nomination and if Hillary wins in November immediately confirm Garland. If the Republicans win in November then allow the next President to nominate. This strategy will beat Obama at his own game!
@Ralph Adamo
OK, sooo me and my BFF, Penelope Dreadful edited the last cartoon, to make it more legal-y!
https://pansiesforplato.files.wordpress.com/2016/03/merricklegal.jpg
Squeeky Fromm
Girl Reporter
Democrats have been so incompetent and gutless over the past 30 years during the times they could have stopped right wing hacks like Scalia and Thomas from joining the Supreme Court that it swung wildly right during this period of time. A typically timid nomination by Obama like this one would keep the court far right just not quite as insanely right as it would be if another Scalia were to have been appointed. That comes down to little progress for those who embrace the modern world and seek workable solutions to the problems we face as a nation. The Reublican political maneuver to refuse to act on the nomination only demonstrates how utterly irrespononsible they are and how unworthy all of the Republican Senators are of the offices they hold. Cowardly Democrats combined with malevolent, ignorant right wing extremist Republicans are a recipe for more of the same crap we’ve all become accustomed to out of Washington. It’s digusting.
Oh, and by the way, a new poll finds that 58% of people in Britain who consider themselves “liberals” support prosecuting people for saying negative things about religion, demonstrating how leftists have abandoned support for free speech in favor of political correctness. The poll, conducted by Populus, found that almost half of respondents (46%) think that there are “some things” you should “not be able to say about religion”. This is an increase of 6% on a previous poll in 2011 which asked the same question. And, of course, you need Big Government to enforce those prosecutions. Hence, liberals/leftists ALWAYS favor Big Government.
Not my first choice, but then I’m not the President. Judge Garland has an outstanding academic record and his experience includes both civil and criminal law, in addition to his many years of service on the bench. He is eminently qualified for a seat on the Supreme Court. (The nomination is also a stroke of political genius in my view.)
Furthermore, I should not have to read Infowars to find out why Garland is a liberal, even though I knew that “a priori ,” making that deduction from the mere fact that Obama wants to nominate him. Infowars’ headline says “Obama nominates 2nd Amendment Foe For Supreme Court.” That pretty much tells the story. Garland is a liberal/leftist. But Jon Turley’s particular expertise is in obnubilation, as he engages in tortured “logic” to make Garland seem more “conservative” and something other than what he is.
Jon Turley says: “Garland is unlikely to thrill liberals. He [] tends to favor government interests.”
Jon Turley obvioulsy needs an edjumacation on what a “liberal” is. And no, he won’t have to go to Harvard or Yale (the only two recognized schools considered suitable for appointment to the SCOTUS) to learn what it is because I will ‘splain what “liberal” is. Today’s liberal believes that Big Government IS the answer, and they ALWAYS favor government interests. So, by that simplified definition, Garland is indeed a liberal. Plus, people should use their common sense. Would Obama recommend any judge who was not in his leftist camp? Of course not. Would never happen; even by accident.
@ Nick
No relation. “Garland” was Judy’s stage name. Her birth name was “Gumm.” She was of Irish/English/Scottish ancestry and baptized Episcopalian. Merrick Garland is Jewish. His ancestors emigrated from Latvia. If he is confirmed, there will be four Jews and five Catholics on the Court. No Protestants. All in all, I think he is a good candidate. While certainly not as conservative as Scala, he is a former federal prosecutor who worked some high-profile cases and was not afraid to get his hands dirty. When he prosecuted the Oklahoma City bombing, he visited the crime scene personally. Although a moderate, he is generally considered tough on criminals. If the Congress refuses to consider him and Hillary is elected, she’ll probably nominate some flaming tranny.
Any relation to Judy?
The ultimate spoiler card by Obama. If they reject him, then the next person is more liberal and they look like hypocrites for having liked this guy in the past. If they accept him, then they don’t live up to their promises of not voting in an Obama appointment. Either way, they lose.
@ Renegade: Seriously? He’s not a 1%er? And I don’t say that perjoratively, just as a fact. He grew up in Lincolnwood, Il. Current population 69% white, 30% Asian, 1% black. Probably virtually all white when he grew up there, but the Asians were attracted by the excellent schools. His father owned an advertising agency; his mother was a director at a Chicago Jewish social services agency. His father’s cousin is the governor of Iowa. He went to Harvard and Harvard Law. Then practiced at Arnold & Porter. Sounds pretty 1% to me. Plus his name is Merrick Garland. People give their kids pretentious names for a reason. Clarence Thomas named his son Jamal, and despite his father’s status, he works as a bank teller because nobody wants to hire someone named Jamal. Probably should have named him Merrick, LOL.
Tin et al
I was wondering what responses my 1% comment might bring forth.
Seriously? …twice used on this thread.
To be serious about the classification of people as members of the 1%.
Is there a firm definition somewhere which lays out the criteria for membership?
Family wealth
Personal wealth
…worked for it
…inherited it
Personal power
Relatives with power –I.e. governor
Specific universities
Ethnicity of the person
Ethnicity of the neighborhood during childhood.
And on, and on?
Is the determination of status like ordering from a Chinese menu:
One from column A , one from B and two from C?
Or is it like a Justice’s determination of pornography…can’t define it but know it when I see it?
‘
The nominee is not of the Rockefeller, Vanderbilt type wealth
His education was on scholarship and hard dedicated work.
Choosing a university usually doesn’t make much difference, it’s a check on an employment application..one survived the undergrad gauntlet with crazy classmates and academics teaching subjects that they barely know themselves.
But law?? Yep I’d rather have one o dem in ma carner..
By what criteria is one assigned to 1%?
I don’t assign 1% to him. Others certainly may. But the term is so ambiguous that I’ll ask what is used in that determination.
In any case, may all o yee partake in a glorious day o d Green.
Thar be two types o people on that day.
Dem dats Irish and dems dat wish they were.
Garland is unlikely to thrill liberals. He [cut] tends to favor government interests.
Apparently Turley thinks Liberals are still liberal.