Supreme Court

Sure Merrick Garland is Qualified But That's Not Enough

Randy Barnett of Georgetown University Law Center says we need to look beyond qualifications to judicial philosophy.


This week President Obama told a crowd in Chicago that his nominee for the Supreme Court, Merrick Garland, was "indisputably qualified" to serve on the highest court in the land. And nobody really argues otherwise." 

Garland's qualifications have been bandied about a lot ever since his name was mentioned by the President but people like Randy Barnett of Georgetown University Law Center say that is an old way of thinking.

Barnett explains that post New Deal, Democrats and Republicans were all in agreement on the Constitution and so all they needed to look at was a nominee's qualifications. But after Justice Antonin Scalia's nomination there became a fundamental disagreement over what the constitution meant.

"Now qualifications are not enough," says Barnett. "What you need is what Joe Biden used to say you have to look for and that is judicial philosophy."

Barnett says Garland is by all means qualified but has a deference to lawmakers that would be terrible from a libertarian perspective: "As a matter of judicial philosophy, I think he would not be a good justice for us to have."

For more, watch "Randy Barnett: Increasing Freedom Through 'Our Republican Constitution"

NEXT: We Need a Sequel to The Big Short to Critique Public Pensions

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  1. Any bum off the street is qualified because the Constitution doesn’t specify any qualifications for the position. It also doesn’t specify the number of Justices so there is no vacancy.

    1. If I were appointing justices, I’d make sure they didn’t have law degrees. I want people who don’t know how to quibble over the finer points, and instead read the Constitution from scratch and base everything on that alone, ignoring politics and fair-weather fads.

      1. You sir are my hero!

  2. Barnett explains that post New Deal, Democrats and Republicans were all in agreement on the Constitution and so all they needed to look at was a nominee’s qualifications.

    That’s quite a claim.

    1. Maybe he means they all agreed that government could do whatever it wanted, that any chance of overturning the New Deal was long past, that deference to government was a given, and any political ramifications, such as Little Rock (my example), were par for the course. But I don’t buy that — Little Rock and scores of other decisions were intensely political, and Row v Wade was long before Scalia.

      Or maybe he means the idea of originalism didn’t matter until Scalia.

      Was Bork the first appointee to cause such a ruckus? Maybe that is what he means.

    1. You were not lying

    2. It is amazing what I could do with other people’s money if I could just get my hands on it. I wonder if Max would like to give me all of his banking information.

      No? Well, fuck you Max.

    3. When will those richies stop being so greedy and give me all of their money?

      1. Who can decide better how to spend the money you earn? You or a bunch of lawyers in Washington owned by special interest groups.

    4. With that money from the rich, I would have a right to a free house and a car

    5. “Its *OUR* money!! They’re stealing from “us”!”

      this idea that money belongs to the ‘people’ until the govt tells you what you’re allowed to keep is one of the sickening byproducts of the coverage of the Panama Papers thing.

    6. A: Evasion is not necessarily illegal. The Supreme Court has agreed that people have no duty to pay more taxes than legally owed.

      B: He implies that all that money is wasted, that the government could do something useful with it (feed the poor!) which the current owners are not doing. He’s backing the Scrooge McDuck swimming pool theory, about as pig-ignorant as anyone can be, because all that money IS doing something useful — it is invested in businesses and generating even more money. If the government were to take those businesses, they’d have to sell them to be able to spend the money, and the only people who could buy them would have to sell other investments to get the spendable cash. It’s a downward spiral and owuld put a lot of people out of work.

      1. I say “avoision”.

  3. I guess it all depends on how one views the role of the Court. Mere mortals who read the words of the Constitution to mean what they actually say might think that the role of the Court is to be a check on power, as in to judge the actions of the other branches based upon the powers given to them by that document. But people in government are not mere mortals. They are angels. So the role of the Court is to go through whatever logical contortions are necessary to justify the actions of the angels in the other branches. After all, these angels in government are not motivated by silly things like self-interest. They are motivated by the greater good. Well, if they are on your TEAM anyway. If not then they are devils.

    1. Mere mortals who read the words of the Constitution to mean what they actually say

      Oh, I’ve been assured (by lawyers) that this is quite unpossible. One must have the secret decoder ring in order to know the meaning of our high-worship words. And not just for the holy paper. All laws that apply to you, written by those who keep the ring, can only be interpreted by others with the ring (for a minimal fee of $300/hr).

      SO…if you want to know if you’ll be thrown in a rape cage for an action, you must go to a lawyer and pay him to tell you what the law, written by other lawyers, actually means.

      Aren’t we fortunate to have these folks around to keep us out of trouble?

      1. I’ve always liked the argument against killing all the lawyers of “Oh, yeah? Well just wait until you need a lawyer and then you’ll change your tune.” Oh, yeah? And when pray tell will I ever need a lawyer? When other lawyers come at me? You can make the exact same argument for having Mafia hitmen – if Mafia hitmen are coming after you you’re going to want to hire Mafia hitmen of your own to protect you, aren’t you? If their weren’t any lawyers I wouldn’t need a lawyer to protect me from lawyers.

        I’ve always thought lawyers sshould be considered as officers of the court and therefore part of the judicial branch and therefore ineligible to serve in the legislative or executive branch.

        1. Two clauses for the next constitution:

          No law may be more than 11628 characters in length (Approximately two pages, 8 x10, Times New Roman, 12 font, single spaced)

          All laws will be written in the common language of the day so as to be understood by the common man without the assistance of a lawyer. There are to be no special legal definitions and all words not specifically defined in this document will be defined as in X dictionary dated Y?

          1. Allow anyone to bring suit to challenge a law as being defective, which means any of

            * internally inconsistent

            * externally inconsistent (and the others laws with which it is inconsistent are also defective)

            * inconsistently enforced

            * vaugue, confusing, or otherwise incomprehensible

            * has undescribed (not unexpected or unpredicted or unknown) consequences

            The defect cases must be judged only by juries, with no appeal, because if a jury says they don’t understand it, it doesn’t matter what learned judges think.

            Laws found defective are thrown out entirely, with all previous convictions tossed. I am on the fence about whether politicians who voted for a defective law should be thrown out and barred from further government employment.

            1. These eliminate the need for length limitations, since the longer a law, the more likely it is to be defective.

              Defective is independent of unconstitutional, only caring whether people can understand a law as written and enforced.

              One way of deciding a law is vague is whether verdicts resulting from violations differ from each other more than can be accounted for by the difference in the cases. Any law, for instance, which sets a hard dollar amount for a change in sentence would fail when someone who stole $499.99 got half the sentence of someone who stole $500.01; you’d have to prorate punishment, not set arbitrary categories.

              And the juries would not be voting for whether a law is defective, but whether it is NOT defective. If one juror says defective and 11 say not defective, it is defective. Laws are guilty until proven innocent.

  4. OT: I was Gay Talese’s teaching assistant. I quit because of his sexism.

    Our fallout occurred just a few classes into the semester. During a 10-minute break, Talese asked me to make him a cup of tea. The request seemed vaguely demeaning and inappropriate. But I wasn’t really in a position to consider it.

    After class that day, we ended up revisiting the tea episode, and Talese berated me for refusing his request. One comment still sears. “You’re not perky enough for me,” he said.

    Might he have asked a male TA to make him a cup of tea? Possibly. After all, he likes to talk about starting at the New York Times in 1953 as a copy boy, “getting people coffee and sandwiches, running errands.” Maybe he thinks that’s how all aspiring journalists should pay their dues.


    1. Will the internet blogger bubble ever burst?

    2. And he said she wasn’t “perky.” Can you imagine??

    3. Crusty = I know you’re aware, but “PostEverything” is a swamp of the worst of the worst progressive nonsense.

      What blows my mind is that it gives Jezebel/Alternet style insanity the imprimatur of being “newsworthy” to the average person.

  5. *Looks over the Constitution*

    Well, look at that. I am qualified to serve on the SC. I am sure Obumbles will be calling me any minute now.

    The argument that the Senate is supposed to be a rubber stamp for the President’s choice is fucking retarded. It flies in the face of the plain text of the Constitution.

  6. Schumer proposes $25K reward for social media extremist tips

    Schumer says current law does not specifically cover tips generated through social media. The proposed bill would require the Department of State to pay rewards of no less than $25,000 for information that leads to an arrest or conviction in a terror case.

    1. So can I turn in congress?

  7. Call me a bigot, but a career as a federal prosecutor should be an immediate disqualification.

  8. OT Colorado GOP will not seat Trump Supporters.

    I guess caucus’ are easy to steal. Is this Iran? Possibly. Is it the USSR? Likely. What ever it is the ccitizens have very little voice. He who buys Congress makes the rules. It isn’t you.

    1. Sounds like Cruz did what Ron Paul did in Iowa in 2012, and the Trumpshits are pissed about it.

      1. That was my understanding of Trump’s calling Cruz a cheater over Louisiana – Trump doesn’t actually understand the rules or believes the rules don’t apply to Him and Cruz making better deals than His Donaldness is beyond His ken. Just like He keeps insisting that the GOP is unfair and cheating and stealing the election from Him if they don’t change the rule about having to have a majority of the delegates to win to a rule that the largest plurality* wins. Trump is seriously arguing that Cruz and the GOP are cheating by following the rules and this in no way is evidence that they’re beating Trump at His own game.

        *Trump doesn’t actually believe this, nor is He whining and crying like a baby because He’s a whiny crybaby loser, He’s just throwing any argument He can out there no matter how ridiculous. If Cruz were to get more delegates than Trump, you can bet your ass Trump would change His tune without batting an eye. Appealing to some abstract “fairness” beyond the fairness of “everybody plays by the same rules” is a typical leftist tactic used by every member of the grievance industry and Trump cheerfully adopts that argument that “fairness” is a matter of outcomes and not of a blind process as long as – and only as long as – it suits His purpose.

        1. Trump campaign godwinning Cruz campaign at I would link article but unable to link here right now for some reason.

          1. You know who else had trouble linking right now for some reason….

        2. I’ve found his insistence that the political rules are unfair particularly hilarious in light of his defending his bankruptcies as simply taking advantage of the financial rules to get ahead.

  9. The argument that the Senate is supposed to be a rubber stamp for the President’s choice is fucking retarded.

    Exactly. Go ahead, have a fucking hearing. Consider him as a candidate. Letting him in the door doesn’t mean you are obligated to approve him. Part of the “advise and consent” function would be to make it plain that you won’t approve the nominee, for specific reasons

    1. I think congress might look at “deference to lawmakers” a little differently than we do

    2. But they’re already advancing the argument that “advise and consent” doesn’t include the right to not advise, it’s hard to see how this doesn’t easily lead to the argument that there’s no right to not consent either.

  10. So now even using href giving me errors !/_%%!”

    1. what is this/ “An error occurred. Code 877.”

      1. Error Code 877 = All of our squirrels are busy at this time. Please remain online and the next available squirrel will be along to assist you. The current estimated queue time is 12 parsecs.

        1. I think it must have had to do with the link format. I received the same error on two different links but they both did have a similar format. Weird that a 3rd link I tried did work and it also had an almost identical format. Lots of slashes (including a date formatted with slashes which I’m thinking is the culprit) and lots of dashes in links. Perhaps the date was subfolder named using slashes in it that made it appear to be referencing other subfolders when it wasn’t.

          1. Try (less than)squirrels(greater than)link(less than)/squirrels(greater than)

  11. Another source of controversy in the federal budget has been the cost of the Pentagon’s F-35, a new warplane that military leaders hope will be more versatile and resilient than past aircraft. While the F-35 is intended to replace several planes currently in use, the Government Accountability Office pointed out in a recent report that the cost of the program will be twice that of four legacy aircraft combined.

    For all that, the annual costs of the F-35 are projected to reach only $20 billion a year. If wealthy Americans and multinational corporations couldn’t avoid paying taxes by shifting their income overseas, the Pentagon could pay for its F-35s six times over.

    We need that money. Pointless idiocy needs funding.

  12. With just $90 billion a year, Congress could set up a national network of high-quality early-education programs open to all families, according to a recent analysis from economist Josh Bivens and his colleagues at the liberal Economic Policy Institute.

    Their goal is to allow every family in the country to provide preschool and child care for infants and toddlers 4 and younger for no more than 10 percent of their incomes. The federal government would pick up the rest of the tab. The plan also calls for a staff of nurses to coach pregnant mothers and families with infants on child rearing.

    Bivens, it’s worth noting, says the plan would pay for itself over the long term, and that the government wouldn’t need a windfall from money squirreled away in the Caribbean to make it happen. “The kids who grow up 10 to 20 years from now would be more likely to earn higher wages and avoid contact with the criminal justice system,” he recently told Wonkblog.

    Assume a can opener.

    1. A company could easily provide child care for 10% of one’s income, if the government didn’t have all the regulations regarding providing child care.

    2. They really want this because it chafes their asses if every living human isn’t working and contributing taxes to the general fund.

  13. This guy is Obama’s hand picked gun control guy. That is all.

    1. Is that the deal? I knew there had to be some angle.

  14. What has happened to this place anyway? I don’t see a single Trump article, I has a sad.

    1. Here you

    2. Here’s an old business-source rundown of Trump’s “yuugely” successful business deals. Mostly an up-and-down history of borrowing huge sums of money for business speculation and churning the cash-flow to stave off bankruptcy.

    1. Maybe free french fries more enticing than wiping old peoples asses?

    1. There is absolutely no McDonald’s in Texas starting drive-through workers at $13-14. That article spent a lot of time dwelling on the potential riches of entry-level fast food employment, but it didn’t mention what the nurses are paid.

      But that’s okay, because I bet it’s a lot and nurses are just whiners who couldn’t find a good government job like everyone else.

      1. I do know that nursing homes pay squat.

        1. But the ‘nurses’ who work there often aren’t RNs, or they may have other issues in getting a job. There’s a nationwide nursing shortage, so no RN with a reasonably OK license and at least a year of experience should have trouble finding a job that will pay 4x what the best McD’s job will

          1. No doubt. No one is going to pay an RN to do that job. Who’s going to do it though?

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    1. “An exercise in taking the man at his word.”

      I think I see the problem.

  16. Oops

    Lonnie Phillips is filing for bankruptcy because he owes $203,000 to the company that sold his stepdaughter’s killer 4,000 rounds of ammunition over the Internet.

    A federal judge threw out his lawsuit against Lucky Gunner, and now the Phillips family must pay its legal fees under Colorado law.

    As the Democratic primary race turns to New York, where the gun issue looms large, Hillary Clinton will seize upon their story and those like it. The Phillips’ daughter, Jessica Ghawi, died in the 2012 mass shooting at a movie theater shooting in Aurora, Colo.
    Lucky Gunner was shielded from prosecution under a 2005 law that grants gun makers and sellers immunity from prosecution for crimes committed with their products. Bernie Sanders voted for the law while a member of the House, though he’s recently wavered over whether he supports it.


    The Brady Campaign has offered to help the family raise the money, but Phillips say they’d rather file for bankruptcy..

    “It’s the principle,” he said.

    “Would you pay $200,000 to the people that sold armor-piercing bullets over the Internet without asking for his drivers’ license?”

    Brady Campaign played this guy like a fiddle. No sympathy from me.

    1. Any competent lawyer would have advised the guy that the suit would be tossed before he even filed it. It seems like this was done purely as some kind of political PR stunt.

    2. Was his daughter wearing Kevlar? Cause otherwise, the type of bullet that piece of shit used doesn’t really matter.

    3. “Would you pay $200,000 to the people that sold armor-piercing bullets over the Internet without asking for his drivers’ license?”

      I mean 200 grand seems like a lot for ammo, but hypothetically, sure!

      1. I’m doubtful it was armor piercing ammo.

        1. Does it even matter? She wasn’t wearing armor?

          1. It doesn’t

        2. All high-velocity rifle rounds are technically “armor piercing” unless they’re intentionally designed hunting rounds intended to fragment/expand and dissipate energy

          as i said = everything about the way they are going about this seems staged to create a PR event for political people.

    4. “…the people that sold armor-piercing bullets…”

      It isnt just that these people want to trample our fundamental rights, it’s that they are such liars. Every single gun-grabber argument I have heard is fundamentally dishonest. I am really sorry about the kid. If I could bring her back I would, but fuck this guy.

      1. Oh, and you are all correct, they were not ‘armor piercing’ rounds. They would have to be steel core bullets for that and those are illegal now. The Soviet satellites dumped a ton of that stuff on the market years ago. It was so cheap that everyone who bought it burned it all up. It is no longer legal to sell.

        This is what I mean by dishonest. This guy is lying.

  17. Here’s the oath or affirmation which Supreme Court Justices take:

    “I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

    If the President wants the Senate to confirm someone for a Supreme Court justiceship, that means the President must show that the nominee is *willing* and *able* to do what (s)he promises to do.

    If (s)he’s *able* to defend the Constitution – that is, has and excellent education and resume showing their legal knowledge and ability – then that’s only *half* the equation. They also have to be *willing* to defend the Constitution.

    A nominee with a good education and resume who uses that education and resume to attack, rather than defend the constitution, is *not* qualified.

    1. And if their “judicial philosophy” doesn’t tell them to defend the constitution, they’re *not* qualified.

      So I don’t like the phrasing “look beyond qualifications to judicial philosophy.” A pro-constitution judicial philosophy is an essential part of a Justice’s qualifications.

  18. on the issue of hearings for obama’s nominee or not, i was right there with mr. barnett until he decided to bring the “people should have a voice because it’s an election year argument”. that’s as stupid as the left’s point that the right isn’t doing its job.

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