How Judge Garland's deciding vote would reverse key decisions protecting Americans’ constitutional freedoms.
President Barack Obama nominated Merrick B. Garland, who currently serves as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to replace the late Justice Antonin Scalia. The White House's strategy was to pick someone whom they believe will be politically difficult for Republican senators to simply ignore – a stealth leftist recast as a “centrist.” The White House even created a new Twitter handle, @SCOTUSnom, to rev up activists seeking to pressure Senate Republicans into giving President Obama's nominee, in Obama's words, "a fair hearing and an up-or-down vote.”
The Democratic Party has lost no time making Obama’s nomination a highly charged partisan issue. All the Republicans want to do is to let the voters have their say this fall in choosing the next president before a lifetime position on the Supreme Court is filled. But Debbie Wasserman Schultz, Chair of the Democratic National Committee, insists that lame duck Obama must have his way and change the entire ideological balance of the Supreme Court for possibly decades to come. “Frankly, I've grown a little sick of Republicans in Congress and their antics that have ranged from simply unproductive to downright offensive,” she complained in a letter to Democrats. Somehow, in Wasserman Schultz’s fevered imagination, it is “offensive” and “obstructionism” to defer to the will of the voters in a presidential election year before making such a consequential decision.
The left's propaganda machine will argue that Judge Garland is a centrist whom all fair-minded senators should support. The New York Times is already quoting Utah Senator Orin Hatch, who said back in 2010, when Judge Garland was being considered to fill another Supreme Court vacancy, “I know Merrick Garland very well. He would be very well supported by all sides.”
However, Senator Hatch made that statement when President Obama was looking to replace Justice John Paul Stevens’ seat. President Obama refused to take Senator Hatch's “advice" and rejected Judge Garland. He nominated the more left-wing Justice Elena Kagan instead, whom the Senate confirmed. The ideological balance of the Supreme Court was not in jeopardy with Elena Kagan’s confirmation because she was replacing one of the more left-wing justices at that time. Judge Garland today, by contrast, would be replacing the intellectual leader of the Supreme Court’s more conservative members.
The whole notion of a Supreme Court “centrist” candidate is a fantasy. Indeed, at the time that President Gerald Ford nominated John Paul Stevens, then a federal appeals court judge on the Seventh Circuit to replace the left-wing Justice William O. Douglas, Stevens was described as “a centrist rather than a liberal or conservative.” Justice Stevens turned out to be one of the more leftist Supreme Court justices in modern times.
President Dwight Eisenhower nominated William Brennan, whom he thought at the time was a moderate conservative. Justice Brennan turned out instead to be an ultra-left-wing justice. President Eisenhower called his nomination of Brennan one of his biggest mistakes.
Republicans should not fall again for false labeling. The "centrist” or “moderate” moniker is a ruse. It’s bad enough when Republican nominees like Justices Stevens, Brennan, Souter and even the Obamacare-affirming Chief Justice John Roberts disappoint. This time, one of the most leftist Democratic presidents in American history, backed by the increasingly far-left Democratic Party and activist groups like the Center for American Progress, are trying to palm off Judge Garland as a “centrist.”
Judge Garland is no “centrist,” even if there were such a thing. After all, he cut his teeth clerking for the ultra-leftist Justice Brennan.
Judge Garland may well be the swing vote to reverse the Supreme Court’s protection of the Second Amendment rights of individuals to bear arms. While serving on the D.C. Circuit Court of Appeals, Judge Garland was one of the judges supporting a motion seeking a reconsideration of a decision by the court’s three-judge panel to strike down parts of the District of Columbia’s gun control law on Second Amendment grounds. The D.C. Circuit Court denied the motion to reconsider. The Supreme Court went on to affirm an individual’s constitutional right to bear arms, a decision that would be in jeopardy if Judge Garland is confirmed to replace the very strong advocate of protecting Second Amendment freedoms from intrusive government regulation, Justice Scalia.
In another case, Judge Garland authored the majority opinion overturning a decision of a Combatant Status Review Tribunal that a particular suspect said to be affiliated with a terrorist Islamist group was properly detained as an “enemy combatant.” He essentially rejected the findings in several government intelligence documents and replaced the considered judgments of intelligence and military experts with that of a civil federal court.
Judge Garland also dissented from a court panel decision that dismissed Iraqis' state law tort claims against contractors working under U.S. military command at Abu Ghraib prison. Judge Garland was dismissive of the pre-emptive authority of military and federal executive officials to handle under federal law the wrong-doing of personnel working for them during wartime, which provides its own remedies to the victims of such wrong-doing.
Another Supreme Court decision that would be in jeopardy if Judge Garland is confirmed by the Senate is Citizens United, which invalidated campaign finance regulations imposed on spending by independent groups on First Amendment grounds. Judge Garland participated in a unanimous panel opinion invalidating Federal Election Commission regulations because they were not stringent enough in implementing the McCain-Feingold Act.
Finally, Judge Garland displayed his extremely left-wing environmentalist views in his decision upholding the government's application of the Endangered Species Act to the arroyo toad. The government’s action was challenged by a real estate development firm asserting that the federal government had exceeded its powers under the U.S. Constitution’s Commerce Clause.
Supreme Court Chief Justice Roberts, who was then serving on the same court as Judge Garland, previewed his view of the proper boundaries of the Commerce Clause in his dissent. He challenged the logic of Judge Garland’s majority opinion by questioning how “a hapless toad that, for reasons of its own, lives its entire life in California” could be a legitimate concern for federal commerce regulation. In fact, Judge Garland himself admitted in his opinion that “the arroyo toad, like the Flower-Loving Fly, does not travel outside of California,” and “that Rancho Viejo's development, like the San Bernardino hospital, is located wholly within the state.” He stretched to reach the result he wanted, including the rationale that the real estate development would be near an interstate highway. Judge Garland did not cite any reports of arroyo toads traveling along that interstate highway, however.
The Constitution’s “advice and consent” clause does not require the Senate to hold hearings or hold an up-or-down vote on President Obama’s nomination, especially for a nominee who is decidedly more left-wing than the Supreme Court justice he would be replacing. The Republican majority Senate can constitutionally withhold its consent for any reason, just by not acting at all. In fact the Framers considered and rejected an alternative that would have required the Senate by majority vote to veto a nominee or the nominee would be deemed approved. And with Judge Garland, as demonstrated by the illustrative cases discussed above, the Republican majority has good reason to tell President Obama, “thanks, but no thanks.”
Some Republican senators might be tempted to consider the approval of a so-called "centrist" candidate as a good political hedge in the event that the Republicans lose the presidential election (i.e. better to accept a "moderate" now than whatever far left candidate Hillary Clinton might nominate). However, Judge Garland will be a leftist justice, who will vote substantially the same on the Supreme Court than any left-wing candidate Hillary Clinton would nominate. Republicans should follow through with the decision to refuse to consider this nomination. If the Democrats do win the presidency this fall, the Republican Senate can always reconsider during the lame duck session, if they so choose.