In nominating Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, President Barack Obama has selected an experienced, highly intelligent, well-regarded jurist. He’s also nominated a liberal sure to agree with the Left on its core issues—such as reversing existing Court majorities on the First, Second, Eighth and Fifteenth Amendments, as well as those governing proceduralissues vital to restraining civil-litigation abuse. For that reason, the Republican-led Senate has plenty of reason not to act on the nomination—invoking Barack Obama’s own test.
Like Sam Alito, Merrick Garland is an intelligent man and an accomplished jurist. But that wasn’t enough for Senator Obama in 2005...
On October 31, 2005, then-President George W. Bush announced that he was nominating Judge Samuel Alito to fill retiring Justice Sandra Day O’Connor’s seat on the Supreme Court. Like Judge Garland, Judge Alito had a long, distinguished pedigree: He had served as an Assistant U.S. Attorney, assistant to the U.S. Solicitor General, Deputy Assistant Attorney General, and U.S. Attorney for New Jersey—and then more than 15 years on the U.S. Court of Appeals. Even the left-leaning American Bar Association gave Judge Alito’s nomination its highest “qualification” rating.
Then-Senator Barack Obama observed, “I have no doubt that Judge Alito has the training and qualifications necessary to serve. He’s an intelligent man and an accomplished jurist. And there’s no indication he’s not a man of great character.” But he nevertheless opposed the nomination—not merely voting against Alito but supporting a Senate filibuster that would have denied the nominee a vote on the merits. In a speech on the Senate floor, Obama argued:
"[T]here’s been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled."
It’s hardly surprising that GOP senators, now in the majority, would approach now-President Obama’s nomination similarly.
Notwithstanding his 20-year tenure on the D.C. Circuit, Judge Garland has had few cases that would serve as obvious “tells” on many hot-button issues like abortion—largely because the circuit’s caseload is largely filled with challenges to federal regulations and administrative agency actions. (The basic rule today is that if you have obvious tells, you don’t get nominated. But it’s inconceivable that Judge Garland’s views on these issues depart from general Democratic Party orthodoxy—Democrat Presidents have a perfect nominating record in this regard.) What we do know, however, suggests someone who is friendly to civil litigation and hostile to individual rights:
- In case after case, Judge Garland has deviated from his colleagues in making it easier for employment-lawsuit litigants to sue and win punitive damages against their employers.
- In First Amendment free speech cases, Judge Garland has tended to take a broad view—except when it comes to campaign-finance regulations. There’s little doubt that Judge Garland, on the Supreme Court, would be the fifth vote to overturn Citizens United.
- In the case that eventually led to the Supreme Court’s decision in District of Columbia v. Heller, which upheld an individual right to bear arms under the Second Amendment, Judge Garland voted for en banc review of the panel decision affirming that right; and in another case he voted that the government could retain background-check information for gun buyers who passed the check. It’s near-certain that a Justice Garland would be the fifth vote for relegating gun rights exclusively to members of state militias.
Doubtless, many commentators will be crowing the Garland is a “moderate” nominee. To be sure, he has taken in general a very deferential approach toward the government in criminal law cases, the “foreign combatant” cases and regulatory review (with the exception of environmental regulations—Judge Garland is enthusiastic about lawsuits seeking more environmental regulations). But libertarian-leaning Republicans are themselves worried about overreach in criminal law and the war on terror. And there aren’t many Republican senators who think that the courts should give unelected regulators a free pass except when they’re being sued by environmental activists seeking more regulation.
Should it be this way? Probably not. I’ve traditionally been of the mindset that judicial nominees should get a rather deferential review by the Senate, screening them for intellectual acuity, competence and temperament—though a politicized confirmation process is the somewhat inevitable result of the Supreme Court’s decision to arrogate to itself policymaking powers rather than limit its power of judicial review to the constitution’s text.
In any event, the die has been cast. From Clement Haynsworth to Robert Bork to Clarence Thomas to Samuel Alito, Democrats have consistently worked aggressively to block GOP appointees to the Court over the last 50 years, on ideological grounds. Historically, Senate majorities have in many cases failed to act when not controlled by the president’s party, especially in election years; any partisans’ or left-leaning scholars’ claim to the contrary is pure hogwash.
Like Sam Alito, Merrick Garland is an intelligent man and an accomplished jurist. But that wasn’t enough for Senator Obama in 2005, and there’s no reason why the GOP Senate shouldn’t invoke the “Obama rule” and hold off on this appointment until after the fall elections.
This piece originally appeared at Forbes