‘MODERATE’ NOMINEE JUST A LABEL
The headlines were everywhere earlier this week, and the meaning behind them was just what you’d expect.
President Barack Obama had nominated a “moderate” to the Supreme Court, so Republicans should not fail to consider someone in the middle of the ideological spectrum. It was all the usual smoke and mirrors. The optics fit, of course. Judge Merrick B. Garland is a 63-yearold white guy with experience on the Court of Appeals. He is a former federal prosecutor commonly held in high regard. He supervised the investigations into the Unabomber and the Oklahoma and Atlanta Olympics bombings.
The administration’s aim was to plant the thought: “Tough, middle of the road, not one of those squishy, far left women we nominated before.”
After seven years, though, the country is on to Obama. People know they generally can’t take him at his word, so a jurist proclaimed everywhere to be “moderate” must not be so. In fact, he is not. Garland may be a moderate among liberals, but his votes on several Second Amendment decisions indicate a penchant for gun control, a stance many voters tell senators automatically disqualifies him from consideration.
In one of the cases, a panel — not including him — of his D.C. Circuit Court of Appeals voted to overturn a Washington, D.C., ban on individual handgun possession. When the requested appeal was made to the full 10-person court, he voted to reconsider the decision.
However, six of the 10 judges voted not to rehear the case. In time, the D.C. ban was struck down by the Supreme Court in a decision, District of Columbia v. Heller, that, ironically, was written by the man Garland would replace, the late Justice Antonin Scalia.
Garland, in another case, voted to uphold an illegal Clinton-era informal gun registry that violated a 1968 congressional prohibition of such a registry. The Clinton administration, by executive action, was “retaining for six months the records of lawful gun buyers [as reported by] the National Instant Check System,” but Congress had expressly forbidden that type of retention.
He also was part of the three-judge panel that upheld the Environmental Protection Agency’s mercury standards for power plants in 2014, a ruling that was rejected by the Supreme Court which said the EPA hadn’t properly considered costs to the power plants.
The specific rulings aside, senators considering whether to give Garland a hearing this year have to decide whether he would be a justice who would rule based on whether the law says what it means and means what it says, or whether justices can embroider opinions from their gut feelings, popular culture and whatever thoughts might be trending in Europe.
Supreme Court justice nominees, after all, will say whatever is necessary in confirmation hearings — Elena Kagan, for instance, swore there was no constitutional right to gay marriage — but they’re not likely to vary their opinions from their ideological colleagues.
As such, according to Slate magazine, liberal justices generally vote to strike down conservative laws, and conservative justices vote to strike down liberal statutes.
Political scientists Lee Epstein and Andrew Martin analyzed data and found, for instance, that Republican appointee Chief Justice John Roberts voted to strike down liberal laws 46 percent of the time and conservative laws 17 percent of the time. For Republican appointee Justice Samuel Alito, the numbers are 54 percent and 2 percent. Likewise, Democrat appointee Justice Ruth Bader Ginsburg voted to strike down conservative laws 67 percent of the time and liberal laws 17 percent of the time. For Democrat appointee Justice Stephen Breyer, it was 53 percent and 16 percent.
For Republicans, then, it comes down to this: They have relatively little to lose by standing firm in not offering Garland a hearing. If their candidate wins the White House in November, he’ll get to make the Supreme Court choice. If a Democrat wins, the winner can leave Garland in place or select someone else.
Either way, the nominee still must get by the Senate Judiciary Committee, which today is controlled by Republicans, who may be expected to lose a couple of members in the fall election but — as of now — not enough to lose control of the panel.
They also can continue to trot out the public pronouncements of Vice President Joe Biden, likely next Senate Minority Leader Chuck Schumer, D-N.Y., and other Democrats who suggested in previous potential confirmation battles that their party take the same position Republicans have taken in 2016.
In the meantime, while Republicans and voters are right to be skeptical of Obama’s widely proclaimed “moderate” Supreme Court choice, they can take the president at his word when asked at a news conference last month if reporters should “interpret your comments just now that you are likely to choose a moderate nominee? Would you …” “No,” the president answered. Take that to the bank.