Patriots: For over 26 years, your generosity has made it possible to offer The Patriot Post without a subscription fee to military personnel, students, and those with limited means. Please support the 2024 Year-End Campaign today.

March 20, 2016

The GOP’s Blocking of Court Pick Is Indefensible

The Republican Party’s incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick Garland radiates insincerity. Republicans instantly responded to Antonin Scalia’s death by proclaiming that no nominee, however admirable in temperament, intellect and experience, would be accorded a hearing. They say their obduracy is right because: Because they have a right to be obdurate, there being no explicit constitutional proscription against this. Or because President Obama’s demonstrated contempt for the Constitution’s explicit text and for implicit constitutional manners justifies Republicans reciprocating with contempt for his Supreme Court choice, regardless of its merits.

The Republican Party’s incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick Garland radiates insincerity.

Republicans instantly responded to Antonin Scalia’s death by proclaiming that no nominee, however admirable in temperament, intellect and experience, would be accorded a hearing. They say their obduracy is right because:

Because they have a right to be obdurate, there being no explicit constitutional proscription against this.

Or because President Obama’s demonstrated contempt for the Constitution’s explicit text and for implicit constitutional manners justifies Republicans reciprocating with contempt for his Supreme Court choice, regardless of its merits.

Or because, 24 years ago, then-Sen. Joe Biden — he is not often cited by Republicans seeking validation — suggested that a president’s right to nominate judges somehow expires, or becomes attenuated, in a “political season,” sometime after the midterm elections during a second presidential term.

Or because if a Republican president tried to fill a court vacancy during his eighth year, Democrats would behave the way Republicans are behaving.

In their tossed salad of situational ethics, the Republicans’ most contradictory and least conservative self-justification is: The court’s supposedly fragile legitimacy is endangered unless the electorate speaks before a vacancy is filled. The preposterous premise is that the court will be “politicized” unless vacancies are left vacant until a political campaign registers public opinion about, say, “Chevron deference.”

This legal doctrine actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the D.C. Circuit Court of Appeals, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — "deference" in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.

In his record of deference, Garland resembles two justices nominated by Presidents George W. Bush and Ronald Reagan, respectively — Chief Justice John Roberts and, even more, Scalia, who seems to be more revered than read by many conservatives. Garland’s reluctance to restrict the administrative state’s discretion would represent continuity in the chair he would fill.

Furthermore, Garland’s deference is also expressed in respect for precedents, which include the 2008 Heller decision. In it, the court (with Scalia writing for the majority) affirmed that the Second Amendment protects an individual’s right to bear arms.

Of the last 25 justices confirmed, beginning with Dwight Eisenhower’s 1954 nomination of Earl Warren as chief justice, Garland, 63, is the second-oldest nominee. (Lewis Powell was 64 when Richard Nixon selected him in 1971.) The average age of the 25 was 53. So, Obama’s reach into the future through Garland is apt to be more limited than it would be with a younger nominee.

Republicans who vow to deny Garland a hearing and who pledge to support Donald Trump if he is their party’s nominee are saying: Democracy somehow requires that this vacancy on a non-majoritarian institution must be filled only after voters have had their say through the election of the next president. And constitutional values will be served if the vacancy is filled not by Garland but by someone chosen by President Trump, a stupendously uninformed dilettante who thinks judges “sign” what he refers to as “bills.” There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters — arrogance leavened by frivolousness.

Trump’s multiplying Republican apologists do not deny the self-evident — that he is as clueless regarding everything as he is about the nuclear triad. These invertebrate Republicans assume that as president he would surround himself with people unlike himself — wise and temperate advisers. So, we should wager everything on the hope that the man who says his “number one” foreign policy adviser is “myself” (because “I have a very good brain”) will succumb to humility and rely on people who actually know things. If Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do.

© 2016, Washington Post Writers Group

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the Tunnel to Towers Foundation, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.