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March 18, 2016

Merrick Garland Is No Antonin Scalia

Maybe not radical leftist, but he’d flip a lot of close decisions.

He may not be the radical leftist many people imagined Barack Obama’s Supreme Court nominee would be, but 63-year-old Merrick Garland of the DC Circuit Court of Appeals would provide the reliable fifth liberal vote leftists have been salivating over since Obama took office. Instead of the liberal-for-leftist swaps of Justices Sonia Sotomayor replacing David Souter and Elena Kagan succeeding John Paul Stevens, filling the empty seat of one of the most brilliant and conservative jurists in generations with someone well to his left is bound to be a political hot potato. And for good reason: Merrick Garland would alter the balance of the Court for a generation.

The concern about Garland from certain quarters is well-founded. The DC Circuit judge has a long record of restricting Second Amendment rights, leading the National Rifle Association to strongly oppose his nomination: “[A] basic analysis of Merrick Garland’s judicial record shows that he does not respect our fundamental, individual right to keep and bear arms for self-defense.”

Abortion foes were also quick to point out that Planned Parenthood president Cecile Richards visited the White House immediately after the announcement of Garland’s nomination — a clear signal to leftists of Garland’s pro-abortion credibility. As Mark Antonio Wright of National Review noted, “[T]his would be the functional equivalent of President Bush — having just nominated Samuel Alito to the bench — ushering Wayne LaPierre of the NRA into the inner sanctum of the Oval Office.”

Garland may be the best of what promised to be a bad lot, but Obama defended his choice as a thorough and careful investigator. As evidence, Obama pointed to Garland’s work on the Timothy McVeigh case, which led to a conviction. “Throughout the process, Merrick took pains to do everything by the book,” said Obama. “When people offered to turn over evidence voluntarily, he refused, taking the harder route of obtaining the proper subpoenas instead, because Merrick would take no chances that someone who murdered innocent Americans might go free on a technicality.”

Regarding Garland’s record as a jurist, Obama added: “On a circuit court known for strong-minded judges on both ends of the spectrum, Judge Garland has earned a track record of building consensus as a thoughtful, fair-minded judge who follows the law. He’s shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions.” Obama also noted that Senator Orrin Hatch defended Garland when first nominated to the appellate bench, calling him a potential “consensus nominee” to the Supreme Court.

As for Senate Republicans vowing to stop any Obama nominee given his status as a lame-duck president in an election year, there are a few cracks developing in that armor. So far seven Republicans have expressed an interest in meeting with Garland, with the reliably moderate Senator Susan Collins of Maine leading the way. “The White House has asked me to meet with him,” said Collins, “and I’ve agreed to do so.”

There is a political calculus at work here, of course. Instead of doing what many suspected he would do and selecting a young, minority, political ideologue to the SCOTUS bench, Obama is daring the Senate to deny a hearing to an older white male jurist who he claims is occupying the center of the political spectrum. On the other hand, Senate Republicans have to weigh the possibility that they may lose the Senate as well as miss out on the White House — it’s a fear that keeps GOP strategists awake at night as they continue to see poll after poll showing Donald Trump both losing to Hillary Clinton and being a drag down ballot.

And even if Trump prevails in November and the Senate holds its GOP majority, there’s no telling just what type of nominee would come from The Donald. Republicans in general have a pretty mixed record on court picks, though Democrats are guaranteed to choose poorly.

The other possibility is that the Senate could hold Garland in its back pocket for a lame-duck session should Hillary Clinton win the White House. Naturally that could be thwarted if Obama withdraws the nomination and replaces Garland with a further-left nominee, but perhaps part of the thawing of this process was intended with this play in mind. With several jurists on the court being long in the tooth, there’s also the likelihood that we’ll have another vacancy in the near future from the liberal side.

Garland would not be the ideal judge, but compared to other names that have come up (including Obama himself) there’s at least some chance of sanity on a few issues. If the nightmare scenario of a Clinton presidency comes to pass, we would see if Merrick Garland really is good at “building consensus” or is simply the rubber stamp in a lot of liberal 5-4 decisions.

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