Being Right: Going Garland

I originally considered the Senate’s position that there lacks precedent for the confirmation of a Supreme Court nominee from a lame-duck president, as it has not happened since 1892 under Benjamin Harrison; that we should let the people decide in the upcoming election. But that was before the president honored his promise to appoint a “consensus candidate” with the nomination of centrist Merrick Garland.

The political polarization and obstructionism in Washington has reached an outrageous new low with the refusal of Mitch McConnell, the Senate Majority Leader, to even consider the President’s nomination of Justice Garland to the Supreme Court. 

McConnell cites the NRA’s op-ed that portrays Garland’s nomination as an existential threat to gun ownership. Nothing about it sheds any light whatsoever on how he views guns or the Second Amendment. Of course, the NRA headquarters wants you to believe something different.

In 2007, two conservative members of a three-judge panel struck down the District of Columbia’s strict handgun laws. The District then asked the full DC Circuit to reconsider this case, and Garland was one of four votes to do so. The rules say the full court can wish to rehear a case when it raises a question of “exceptional importance.” The gun rights case was certainly of exceptional importance, since no court of appeals had ever before ruled that there was an individual right to gun ownership. Judge A. Raymond Randolph, a very conservative George H.W. Bush appointee, voted with Garland. 

The NRA claims that Garland’s decision to cast the same vote as Randolph marks the Supreme Court nominee as someone who “does not support the Second Amendment.” This is a senseless position, though the NRA is extremely skilled at crafting senseless positions into talking points for narrow-minded Tea Party constituents.

In an interview with CBS’ Face The Nation, conservative attorney Miguel Estrada described Garland as “astronomically qualified” and said that he “should be confirmed.”

Estrada is not the only conservative lawyer to praise Justice Garland. Charles Cooper, a former Reagan administration lawyer who is probably best known as former consul to the NRA and for defending California’s anti-gay Proposition 8 before the Supreme Court, is also a big fan of Garland. 

In a 1995 letter to the Senate Judiciary Committee, written when Garland was awaiting confirmation to his current seat on the DC Circuit, Cooper wrote that “not only is Merrick enormously gifted intellectually, but he is thoughtful as well, for he respects other points of view and fairly and honestly assesses the merits of all sides of an issue.” Cooper also noted that, “Merrick Garland will be among President Clinton’s very best judicial appointments.” Nearly two decades later, Cooper said that his “high opinion of Judge Garland has not changed. Indeed, it has only strengthened over the course of the 19 years since I wrote these words.”

In May 2010, Senator Orrin G. Hatch, a Republican from Utah, said he would help President Obama if Garland were nominated, calling Garland a “consensus candidate,” and predicted that Garland would win Senate confirmation with bipartisan support. Five days prior to his nomination, Hatch predicted that Obama would nominate someone the liberal Democratic base wants, even though he “could easily name Merrick Garland, who is a fine man.” Now, Hatch is looking for every reason to back the Senate leadership in opposing the president’s appointment, stating there’s a “well-established rule” that “lame duck presidents” don’t get to make nominations. Hatch also says that people are “going to get very, very upset” if a nomination is considered and it wouldn’t be “fair to both sides.” Currently, the senator has adopted some ludicrous position that the obstruction must continue, since protesters with “professionally printed signs,” disrupted his fancy lunch meeting.

The GOP needs to understand that any Clinton or Sanders nominee would unquestionably be well to the left of Merrick Garland. There is a strong likelihood that an abrasive, bigoted candidate like Donald Trump or Ted Cruz drags a number of Senate Republicans to defeat in November, in which case the Democrats would regain control of the chamber, and McConnell’s obstruction strategy would have spectacularly backfired.