OBAMA’S SUPREME POLITICS- HOW GOP SENATORS SHOULD HANDLE MERRICK GARLAND’S NOMINATION

Posted By on March 17th, 2016

http://www.wsj.com/articles/obamas-supreme-politicsobamas-supreme-politics-1458170388

President Obama’s nomination of Merrick Garland for the Supreme Court is meant to put Senate Republicans on the spot by elevating a well-qualified 63-year-old judge not known as a progressive firebrand. Republicans aren’t likely to fall into this trap, and Judge Garland’s jurisprudence suggests they’re right—with a caveat we’ll get to later.

The common wisdom is that Judge Garland’s nomination presents Republicans with the most moderate option they’ll get from a Democratic President. Maybe, maybe not. But we can’t think of a single issue that has divided the Court on which Mr. Garland would reliably vote differently from the four liberal Justices already on the bench.

Judge Garland’s 19-year tenure on the D.C. Circuit Court of Appeals demonstrates a reliable vote for progressive causes, with the arguable exception of criminal law. Two issues in particular make the point: the Second Amendment and deference to the growing power of the administrative state.

In 2007 Judge Garland voted for a rehearing en banc after a three-judge panel invalidated Washington D.C’s handgun ban. In 2000 Judge Garland was part of a three-judge panel that allowed the FBI to temporarily keep files with information from gun purchase background checks. In his dissent, Judge David Sentelle wrote that the Attorney General was not only making “an unauthorized power grab, but is taking action expressly forbidden by Congress.”

Judge Garland has also shown a pattern of over-deference to administrative agencies including the EPA. Scotusblog’s Tom Goldstein points out that Mr. Garland has strong views on agency deference and “in a dozen close cases in which the court divided, he sided with the agency every time.”

In an especially notable case, Judge Garland dissented when the D.C. Circuit struck down the EPA’s egregious regional haze rules (American Corn Growers v. EPA, 2002). Excessive judicial deference to regulators is especially dangerous now given the Obama Administration’s unrestrained use of executive power to rewrite statutes and dare Congress to stop it. CONTINUE AT SITE

 

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