President Obama made the relatively obvious strategic choice by nominating a “moderate” judge to fill the late Judge Antonin Scalia’s seat. Although it disappointed the hard left, in particular the race and gender obsessed identity politics crowd, Merrick Garland’s nomination will challenge Republicans’ resolve to deny Obama opportunity to fill the seat before he leaves office.
Had Obama simply appointed another die-hard leftist, Republicans would have risked nothing by waiting him out and seeing what happened during the election. If Hillary won they’d be no worse off, but if a Republican (not named Trump) won they’d get someone more to their liking. And the idea put forth by Democrats that stalling would spark an electoral backlash against the GOP is wishful thinking at best.
But now it’s trickier. Hillary will almost certainly appoint someone to the left of Garland, who Orrin Hatch in 2010 pushed Obama to nominate to the seat eventually filled by Elena Kagan. He and some other Senate Republicans have suggested they might take up Garland’s nomination during the lame duck session after the election. However, if a Democrat wins Obama will likely withdraw the nomination (which Sanders has already publicly asked him to do in the unlikely scenario that he is elected) and allow his predecessor to put forth a Progressive ideologue. That puts pressure on them to
A wildcard is Trump’s populist insurgency. If he is the nominee, Republicans can go ahead and assume Hillary will win – baring the increasingly unlikely scenario that she is indicted – and act accordingly.
Long story short, Obama has forced Republicans to weigh the risks and rewards of accepting his nominee instead of the no-risk position they’d have faced against a more hardline pick.
But while his nomination is good politics, what might the “moderate” Garland mean for liberty if confirmed? Sure, he has some level of bipartisan appeal, but they are mostly on issues in which the parties are both wrong.
As Ilya Shapiro explains, he is simply too deferential to government.
Garland has shown an alarming amount of deference to the government in his years on the important D.C. Circuit, which handles appeals from administrative agencies. I also fear that he won’t represent the check on ever-expanding federal power and executive actions to the same extent as Scalia. And if you’re a civil libertarian, his solicitude for law enforcement makes him much less appealing than other judges who had been under consideration.
Reason’s Damon Root made a similar case:
While Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.
In the area of criminal law, for example, Garland’s votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”
Likewise, Garland voted in support of the George W. Bush administration’s controversial war on terrorism policies in the Guantanamo detainee case Al Odah v. United States, in which Garland joined the majority opinion holding that enemy combatants held as detainees at the U.S. military facility at Guantanamo Bay were not entitled to habeus corpus protections. The U.S. Supreme Court ultimately overruled that decision, holding in the landmark caseBoumediene v. Bush that Guantanamo detainees do enjoy habeus corpus rights.
Nevertheless, there is at least one issue likely to prove a major obstacle to Garland’s finding broad Republican support, and that is gun control.
Overall, however, deference to government is a common trap for Republicans, who fear “judicial activism” to the point that they would rather Congress and the Executive operate without significant judicial constraints. As such, they might see Garland as a real move in their direction from Obama, when in fact he’s more likely to be another ally of big government and a disappointment for civil liberties.