President Obama nominated appeals court judge Merrick B. Garland to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, and a conservative legal expert says Garland is about as good of a a choice as Republicans could hope for but should still decline to consider any nominee until after the November elections.
Wednesday morning, Obama introduced Garland as his nominee in a Rose Garden ceremony. The 63-yearold Garland is the chief judge on the District of Columbia Court of Appeals. Obama’s choice caught many people by surprise.
“I think it’s deeply political,” said Ethics and Public Policy Center President Ed Whelan, who clerked for Scalia and later held prominent posts on Capitol Hill and in the Justice Department.
“The White House, if it had its druthers, if it had a Senate Democratic majority, would have gone with someone who is much more aggressively left-wing to excite the base among other things,” said Whelan.
Garland was believed to be on Obama’s short list in 2010, when the president ultimately nominated Elena Kagan to succeed Justice John Paul Stevens. While not at all urging Senate action, Whelan says Garland does have some strong qualities.
“At the risk of engaging in the soft bigotry of low expectations, I do think that Judge Garland is about the best one could hope for from this president. That doesn’t mean that Republicans should act at all, much less confirm,” he said.
“Merrick Garland is a remarkably intelligent, very decent man. He deserves to be treated with respect in the process,” said Whelan. “I think in all respects he comes across as a very standard liberal, again one of very high ability.”
Democrats and the mainstream media instantly labeled Garland a moderate who is unquestionably qualified for the high court. Observers say his opinions on the appeal court show he is generally tough on criminals and defers frequently to police and to the executive branch on matters of expanded power.
Gun rights advocates are not at all happy with the idea of Garland on the Supreme Court. In 2007, a three-judge panel of the D.C court of appeals voted to overturn the ban on handguns in the District of Columbia. Garland subsequently voted to send the case to the full appeals court.
In a statement, Gun Owners of America Executive Director Erich Pratt says that vote alone should disqualify Garland.
“He supported the DC gun ban in 2007, voting to reconsider the Heller case after a three judge panel had ruled against the ban.
“Hence, we don’t have to speculate as to how Garland would vote on Heller if confirmed to the Supreme Court. He’s already voted against Heller once before, thereby showing he’d effectively rip the Second Amendment from the Constitution,” said Pratt.
While experts debate Garland’s record in nearly two decades on the appeals court, Whelan says that paper trail is largely irrelevant.
“The particular cases that come up before any lower court, with Supreme Court precedent guiding them, are not going to provide the clearest indication of anything really. The New York Times has an interesting graphic today, predicting that Merrick Garland would end up slightly to the left of Elena Kagan and would consolidate a five-justice liberal majority to make the court more liberal than it’s been in 50 years,” said Whelan.
Bottom line, says Whelan, beware of anyone labeled a moderate.
“Anyone who is presented as a moderate, as Ruth Bader Ginsberg was back in 1993, ends up becoming a solid member of a liberal majority. I see nothing in Judge Garland’s record that would make me think it would be any different with him,” said Whelan.
But all assessment of Garland’s record for the next seven-and-a-half months is sheer academics for Whelan. He says Republican senators are taking exactly the right approach.
“I think this is a seat that needs to remain vacant through the election. I think Senate Republicans have drawn entirely the right line. If the American people choose to ratify the direction in which Merrick Garland would take the court, they have the opportunity to do that in November. The Senate could act on his nomination afterwards if it chose to,” said Whelan.
On Wednesday, Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, reaffirmed that their refusal to consider the nomination had nothing to do with the person chosen by Obama but was simply a matter of giving Americans a voice on this critical issue through the ballot box.
A few GOP senators struck a different tone, with Sen. Mark Kirk, R-Ill., saying he is ready to give the nomination his consideration. A handful of other Republicans said they would be willing to meet with Garland.
Whelan is not worried about Republicans keeping a united front.
“I think it will be difficult to keep together. Meeting with a judge is a trivial step for an individual senator to take. I don’t think that’s going to reflect any cracking of the coalition,” said Whelan.
One unexpected wrinkle in the plans of Senate Republicans wanting to wait for a president of their own party to win the White House is the emergence of Donald Trump as the most likely nominee at this point. Whelan says that shouldn’t alter GOP strategy at all.
“I have no particular confidence that Donald Trump would make strong nominations to the Supreme Court. But the chance that he would support a conservative is far higher than the chance that President Obama or a President Hillary Clinton or Bernie Sanders would,” said Whelan.
“There’s no significant downside to letting this play out,” he added.
