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garland & obama

Obama Leaves Garland Hanging


Political theater. That’s the only way to describe today’s nomination by President Obama of D.C. Circuit Court’s Merrick Garland for the Supreme Court. Senate Republicans have been clear both publicly and privately from day one that the American people deserved a voice in the lifetime appointment of the next Supreme Court justice. “Everybody knows any nominee submitted in the middle of this presidential campaign isn’t getting confirmed,” Senate Judiciary Chairman Chuck Grassley (R-Iowa) reiterated. That’s how the Democrats governed in the majority, and it’s how the Republicans will continue to.

Of course, that didn’t stop President Obama from dangling a phony moderate in front of the GOP to complicate matters. Like Elana Kagan, this nomination was carefully orchestrated — perhaps more so. Despite spending his career on the bench and in the Justice Department, Garland doesn’t have much of an ideological paper trail. As many have pointed out, the D.C. Circuit Court deals primarily with regulatory issues, meaning that Judge Garland’s record is virtually free of cases on abortion, marriage, or religious liberty. And that’s no accident. If President Obama wants to keep up this façade of centrism, he needs someone free of social baggage. But, make no mistake. Garland was carefully vetted. This president is too worried about his activist legacy to put it in the hands of a man who values the very Constitution it defies.

Naturally, the White House will talk about Garland’s “moderate” credentials (his fierce anti-gun stance should debunk that), but a survey of his former staff tells a different story. Of his former law clerks, 33 went on to serve liberal Supreme Court justices. Only 11 were hired by constitutionalists. “Not as liberal” is still liberal. With permanent job security, there’s ample room to “evolve.” As expert Ed Whelan pointed out on NRO’s Bench Memos, “Look for President Obama to argue [on Garland] that the Senate’s unanimous or lopsided vote for that person for a lower-court seat (along with nice things senators said at that time) somehow prevents the Senate from taking a very different view of the Supreme Court nomination. To take one of many counterexamples, please note that Robert Bork was confirmed to the D.C. Circuit by unanimous-consent vote.” And while many respect his intellect, like Whelan, they have “zero illusions that a Justice Garland would help move the Court in the right direction in undoing the damage of decades of liberal judicial activism.”

In the end, the Senate’s position isn’t about the person — it’s about the principle. “The only reason that they’re complaining about a hearing on the nominee is because they want to make the process as political as possible,” Grassley said. “And that goes to the heart of the matter. We’re not going to politicize this process in the middle of a presidential election year.” The other 10 GOP members of his committee have already made up their minds. Senator Lindsey Graham (R-S.C.) couldn’t have been clearer when he said, “We’re not going to confirm anyone. Period.” But America’s law professor-in-chief still insists: “In putting forward a nominee today, I am fulfilling my constitutional duty. I’m doing my job. I hope that our senators will do their jobs, and move quickly to consider my nominee. That’s what the Constitution dictates…”

Wrong again. As scholars like Noah Feldman remind him, “Here’s what the Constitution says about filling Supreme Court vacancies: nothing.” Yet, as they’ve done with abortion and same-sex marriage, liberals are quite content to point to its invisible ink to suit their narrative. The reality is, President Obama has the right to nominate a replacement for Justice Scalia, just as the Senate has a right to ignore it. This is exactly what the American people wanted when it elected a GOP majority: a Senate that would rein in the president’s unchecked powers. Now they have it. And on the biggest decision in a generation, we can all be grateful its leaders are doing their part.


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