Supreme Court

Why the Merrick Garland Nomination Is a Disappointment to Progressives

Left-wing activists complain about Obama's SCOTUS pick.

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Credit: C-SPAN

President Barack Obama said he selected Judge Merrick Garland to replace the late Justice Antonin Scalia on the U.S. Supreme Court because of Garland's sterling credentials. "I've selected a nominee who is widely recognized not only as one of America's sharpest legal minds," Obama announced, "but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence."

Unfortunately for Obama, not all of his liberal allies seem to see it that way. "Judge Garland's background does not suggest he will be a progressive champion," protested Murshed Zaheed, political director of the liberal activist group CREDO. Left-wing pundit Mark Joseph Stern offered a similarly disapproving view. "President Barack Obama's nomination of Merrick Garland to the Supreme Court is extremely disappointing," Stern griped at Slate. Even Terry O'Neill, president of the National Organization for Women and normally a staunch friend to the Obama administration, took a shot at the president's pick. "It's unfortunate that President Obama felt it was necessary to appoint a nominee to the Supreme Court whose record on issues pertaining to women's rights is more or less a blank slate," O'Neill complained.

Why are so many progressives voicing complaints about the Merrick Garland nomination? One plausible explanation comes courtesy of liberal legal scholar Jeffrey Rosen, a contributing editor for The Atlantic and the president of the National Constitution Center. In Rosen's view, the Garland nomination counts as a "victory for judicial restraint." That victory is precisely why lots of progressives are unhappy. Here's Rosen:

Garland clerked for two legendary judges—Henry Friendly and William Brennan. But he has embraced the deferential jurisprudence of Friendly, rather than the activist jurisprudence of Brennan. (Chief Justice John Roberts, who also clerked for Friendly, said admiringly, "Any time Judge Garland disagrees, you know you're in a difficult area.") As Damon Root, the libertarian writer accurately concluded, "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." That's why Garland's nomination may discomfit libertarians and progressives who want to use the courts to impose contested visions of social change on a divided nation. But, in any rational world, it should lead traditional conservative and liberal defenders of a limited judicial role to dance in the streets.

The idea behind judicial deference is that unelected judges should be extremely wary about overturning laws enacted by the democratically accountable branches of government. As Rosen suggests, modern progressives do sometimes favor this minimal approach to judging. In 2012, for example, as the Supreme Court was weighing the constitutional merits of the Patient Protection and Affordable Care Act, President Obama lectured the Court on why it had no business taking the "unprecedented extraordinary step of overturning a law that was passed by a strong majority of Congress." Chief Justice John Roberts ultimately came to the same conclusion, voting to uphold Obamacare on the deferential grounds that, "it is not our job to protect the people from the consequences of their political choices."

Most progressives probably thought that sort of judicial deference sounded exactly right. Yet just one year later, those same progressives probably thought differently when the Supreme Court weighed the constitutional merits of another law "passed by a strong majority of Congress," the Defense of Marriage Act. In that case, United States v. Windsor, the Court adopted a wholly different approach to judging, gave no deference to Congress, and struck down a central provision of a democratically enacted federal statute. Not exactly "a limited judicial role" for SCOTUS.

Which brings us back to the Merrick Garland nomination. If Garland really is a true believer in judicial deference, that means Garland thinks judges should consistently tip the scales in favor of lawmakers, including in cases in which lawmakers have passed legislation that progressive activists don't like (such as regulations that govern abortion providers).

In other words, the Garland nomination ended up delivering a surprising and unwelcome message to Obama's progressive supporters, Namely, progressives can't have it both ways and still claim to favor any sort of coherent judicial philosophy. No wonder they're upset.

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  1. “victory for judicial restraint.”

    When you see that as a bug instead of a feature…

  2. “Obama’s poison pill tastes funny.”

  3. Chief Justice John Roberts ultimately came to the same conclusion, voting to uphold Obamacare on the deferential grounds that, “it is not our job to protect the people from the consequences of their political choices.”

    A statement that should go down in history as one of the worst ever by a Supreme Court Justice. Its an outright, bare-faced abrogation of duty.

    1. It definitely ranks up there.

      If SCOTUS has any duty whatsoever it’s to be the final interpreter of federal constitutional law, which in some cases would most certainly protect the people from the consequences of their political choices.

      Can’t wait for Hillary to elect three more “moderate” judges.

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    1. Pfft. SCOTUS Justices make more than that!

  5. If Garland really is a true believer in judicial deference, that means Garland thinks judges should consistently tip the scales in favor of lawmakers, including in cases in which lawmakers have passed legislation that progressive activists don’t like (such as regulations that govern abortion providers).

    We all know that’s not how this works. “Judicial deference” means pushing the Total State agenda. “Judicial activism” means opposing the Total State agenda.

    1. In that case it meant rolling over for the executive branch’s preferred outcome.

  6. I heard some jackass on NPR this morning dismisssing the idea of bias in the judicial deference philosophy because the judges defer to the agency interpretation during both liberal and conservative administrations. Nevermind that 1) no they don’t and 2) an even-handed bias in favor of bureaucracy is still a bias.

    1. The federal bureaucracy rules. The “liberal and conservative administrations” are democracy theater.

  7. I have yet to hear my Obot friends give a reason to support Garland that doesn’t boil down to either go-team-go or assertions of “centrism,” and he is a “centrist” only because he licks both government’s left boot and its right boot.

  8. It’s hilarious that progressives are still stupid enough to think that Obama gives a rat’s ass about them. He’s almost out of office. If he does anything, it will be to benefit him, his future, or cronies. I mean, that was true for his entire presidency, but earlier on, doing things for his progressive base made sense for his reelection and support.

    At this point? Ahahahahahahahahahaha

  9. I try to explain this to my left-wing friends but they don’t care because they just want to troll Republicans. The left is mostly who started the entire trolling trend in politics right now, and Trump is the direct response to that.

  10. He was nominated for political reasons, not ideological. Doy.

  11. Garland manages to be worse than Scalia in pretty much anything that would be important to conservatives and in pretty much everything that would be important to progressives. But Obama only cared about nominating someone where he could make Team Red look bad for not approving.

    1. I like that the term ‘moderate’ is now synonymous with ‘authoritarian in ways that are both left and right-wing.’

  12. Progressives are also upset that Garland is “an old white man”.

  13. “Unfortunately for Obama, not all of his liberal allies seem to see it that way.”

    What do you mean “unfortunately?” Every time a prog criticizes this nomination Obama gets a boost to his narrative of “obstructionist Republicans block moderate nominee.”

    I’m not convinced Obama even *wants* this guy confirmed. When he thinks he has a chance of getting a candidate confirmed, he nominates a good-ol’ prog like the Wise Latina or Kagan.

    But if he thinks Garland will lose, and the Republicans will be blamed, he can safely nominate someone who, in the language of judicial politics, is a “moderate” (licking authority’s left *and* right boots, as said above).

    But “moderate” in current usage doesn’t mean always deferring to the elected branches. It also means “upholding precedent,” meaning Roe and gay marriage. The fact that the precedents involve overruling other government branches is irrelevant – a truly *restrained* judge will do what other judges did in the past, because the rubes need to think the judges know what they’re doing and constant changes of mind on the part of the judges will damage that glittering fable.

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  15. Roberts deference in the ACA cases was not to the legislature but to the executive. In both cases he had to rewrite the law as written to avoid constitutional issues or policy consequences the administration did not like. Whatever Roberts was doing was not “restraint”.

    1. Moreover, the ACA was passed in about the most underhanded way possible. To say that it reflects the “political choices” of the people is a stretch.

  16. Why are so many progressives voicing complaints about the Merrick Garland nomination?

    Because he looks like Dr. Strangelove?

  17. This guy was chosen for one reason only. To try to embarrasses the Republicans.

    They pick a guy who they know will not go through the process that is moderate in many ways and then they can say, look how crazy the Republicans are for not letting this guy on the bench.

    They get their allies on the Left to scream he is not liberal enough to prove the point.

    This President has already picked “how many” JOSCOTUS?

    I think that is enough for any one president…

  18. I think most of you are underestimating the process here.

    In Canada, My Home And Native Land?, we had a Prime Minister in the early 1990s through the early Oughts named Jean Chretien. Deplorable in many ways, he nevertheless understood something very important about how to manage issues. He would stonewall anyone who asked him what he was going to do about the issue du jour just long enough for a new issue to arise, at which point the old issue was forgotten by pretty much everyone.

    This worked a treat. It would seem (though I don’t know enough about all the publicly-viewable machinations of the GOP to be certain of this) that people on the conservative side of this kerfuffle simply waited until The Left started to express their own dissatisfaction with Obama’s pick.

    That’s perfect! Unless they’re utterly brain-dead (yeah, yeah, I know, I know, they’re the Stupid Party), really, all they have to do is say “Obama’s nominee isn’t even acceptable to his own fellow-travelers; why should we go through the process of vetting this guy?”

    Out-wait the issue. A new one will be along soon enough, and the certified morons in The Media Party will go baying after it, forgetting the previous issue in the process.

    Problem solved. Next!

    1. Out-wait the issue. A new one will be along soon enough, and the certified morons in The Media Party will go baying after it, forgetting the previous issue in the process.

      The Clinton Playbook. Evade, deny, obstruct until they commit a shiny new crime to divert attention from the first.

  19. Chief Justice John Roberts ultimately came to the same conclusion, voting to uphold Obamacare on the deferential grounds that, “it is not our job to protect the people from the consequences of their political choices.”

    “Not our job to enforce the constitution. That’s been irrelevant for decades. We pretended for a while, with that ‘Living Constitution’ jazz, but come on, it’s time to move on. The peasants still get to vote for figureheads over their rulers in the federal bureaucracy, but you see how it really doesn’t do any good?

    That should teach us. Throwing the peasants a bone and giving them some democracy theater only gets them all uppity. Time to let them know that Rulers Rule, and the Peasants will Take it and Like it.”

    1. You forgot the “Good and Hard” part.

  20. Merrick Garland supports expansion of executive power and deference to the regulatory state. That is all Obama needs. That is why he was appointed.

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  22. Seems to me that Obama’s been a disappointment to progressives since Day One. I can’t imagine why anyone would think he would change now.

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