President Obama has named his nominee to fill the seat of recently deceased Supreme Court icon Antonin Scalia. His man: Merrick Garland. Garland has all the right credentials for the media: a graduate of Harvard and Harvard Law School, an HW-appointed prosecutor, a judge on the District of Columbia Court of Appeals.
He’s also a leftist.
Deciding on judicial nominees isn’t complex, despite the media’s attempts to make it so. Judicial nominees have judicial philosophies – a set of principles by which they make their decisions. If that philosophy does not mirror that of Justice Scalia – that law, including the Constitution, means what it meant when it was written, and that judges do not have the moral or legal authority to rewrite law to meet their own political predilections – then the nominee should be rejected. Now, most nominees pay lip service to this simple notion. But few actually apply it.
Merrick Garland isn’t one of those few.
Your first indicator: Obama nominated him. And Obama hates that judicial philosophy.
Your second indicator: Garland opposes the notion that Second Amendment rights extend to individuals. As Carrie Severino wrote several days ago at National Review:
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.
So get ready – Obama’s nominee will be the swing vote on your ability to protect yourself.
Here’s how John Heilemann of New York magazine described Garland in 2010: “On some of the most important issues facing the court – the environment and labor law, to name two – Garland is every bit as progressive as Stevens.” Heilemann added that Obama wants a justice who will defer to his legislative legacy.
So, what should Republicans do? Here are three theories:
Stall The Nominee Based On Timing. Republicans seem hell-bent on this particular strategy. They’ve been saying ever since Scalia died that Obama shouldn’t get to appoint the nominee, that the people should have their say about the presidential election before the deciding vote on SCOTUS is filled. This is a foolish argument – timing isn’t the issue. That’s even more true now that Donald Trump looks like the prospective Republican nominee. If he starts trailing heavily to Hillary and looks like he’ll go down in the election, look for Republicans to turn to strategy number two.
Confirm The Nominee. Yes, we’ve been afraid that Republicans will do this all along. Obama and Trump have now provided them an excuse to do so. Obama has nominated a judge who isn’t the furthest-left guy in the room; Trump losing to Hillary could mean that Hillary would withdraw Garland and replace his nomination with somebody far more extreme. So watch for Republicans to pull the plug on their resistance and greenlight the guy.
Stall The Nominee Based on Philosophy. This is what Republicans should do, of course. But Republicans rarely stand for anything. They should reject any nominee who doesn’t mirror Scalia’s philosophy; they won’t. They should make this about principle rather than personalities of those who do the nominating; they won’t.
This is why they lose. And this is why Republicans get so fed up in the first place that they turn to big promise-making snake oil salesmen like Trump.