RUTHFULLY YOURS

President Obama on Wednesday formally nominated Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court. After studying his extensive record, the National Federation of Independent Business believes that Judge Garland would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers. On behalf of the hundreds of thousands of members we represent, the NFIB opposes Judge Garland’s confirmation.

In NAHB v. EPA, Judge Garland in 2011 refused to consider a Regulatory Flexibility Act (RFA) claim by the National Association of Home Builders against the Environmental Protection Agency despite the law’s clear language. The RFA is one of the few federal statutes that explicitly require certain agencies to take into account the effect of their actions on small employers. Consider that the federal government itself estimates that the typical small business must spend $12,000 per worker annually just to be compliant with federal regulations. With Judge Garland on the Supreme Court, the EPA and other regulators would have a freer hand to impose even more costs on small businesses.

In another case, Rancho Viejo, LLC v. Norton, in 2003, Judge Garland argued that the Commerce Clause, which regulates economic activity between the states, applies to an animal species found in only one state and which has no economic value. In doing so he foreshadowed the creative reasoning that the Obama administration used to defend the Affordable Care Act in NFIB v. Sebelius. We fear that as a pivotal justice on the Supreme Court, Judge Garland could apply his elastic view of the Commerce Clause to almost anything else.

In two other cases involving the National Labor Relations Board, Judge Garland didn’t just side with the government—he argued that business owners should be personally liable for labor violations. In other words, their personal assets, including their homes and their savings, would be exposed to government penalties. What worries us is that Judge Garland has been consistently wrong on labor law. In fact, in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.

With more than 320,000 members, our organization is the country’s largest advocate for small-business owners. When we asked members on Wednesday whether they wanted to fight the Garland confirmation, the response was overwhelming. More than 90% urged us to take action. CONTINUE AT SITE

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

Having supported Jeb Bush, a Trump apologist I am not. However, to blame him for a mob of leftist thugs wreaking havoc at his rally in Chicago is just plain wrong. It is anti-free speech; it’s un-American. The attempt by MoveOn.Org to use paid protesters to silence Trump supporters through intimidation is consistent with the radical left’s attempt to silence those with differing opinions and views. This tactic is reprehensible, but has been used frequently. Remember the protests at Rutgers University preventing Condi Rice from speaking or the protests, at a Yale forum on free speech?

The left is not interested in having a discussion or even a heated debate with Trump or with anyone else who cannot pass the liberal litmus test. They are only interested in silencing views with which they disagree. To disagree with them is to be branded a racist or a bigot. In today’s world, this is an example of the not-so-subtle intimidation of political correctness. Indeed, the left-leaning media is complicit as MSNBC’s Rachel Maddow went so far as to blame Trump for the behavior of the mob. Stifle debate, blame the victim. This is the way the left deals with dissent.

Alternatively, a civics lesson on how to deal with dissent or differing views is exemplified by the late Justice Antonin Scalia in the United States Supreme Court’s decision in Texas v Johnson. There, Justice Scalia joined the majority ruling upholding Gregory Lee Johnson’s constitutional right to light an American flag on fire during the Republican National Convention in Dallas. The next day Justice Scalia commented, “I would send that guy to jail so fast if I were king.” While he found Johnson’s act personally and morally reprehensible, Scalia emphasized that burning the flag is a form of free speech and, therefore, a right granted to the citizens by the First Amendment.

Following Justice Scalia’s line of reasoning, we cannot allow personal judgment or bias to preclude us from allowing others to speak. Free speech is the most basic right granted to U.S. citizens; it’s what makes us Americans. We do not have to agree with conflicting opinions and, in fact, we have the First Amendment right to argue at will. But we do have an obligation to protect every person’s right to express his or her views — no matter how unpalatable we find them. While I find it remarkable that more people are not outraged by Senator Sanders’ blatant socialism or Hillary Clinton’s Benghazi cover-up, no one has the right to shut Sanders or Clinton down entirely. Despite what I think of the two candidates personally, I would defend their right to voice opinions that fundamentally conflict with my own. Intimidation of any kind has no place on the right or the left.

I think very highly of Merrick Garland, whom President Obama has nominated to fill the Supreme Court seat of the late, legendary Justice Antonin Scalia. Merrick was a voice of reason and sound judgment as a top official in the Clinton Justice Department during the Nineties when I was prosecuting terrorists. It seems hard to believe now, but our decision to charge the Blind Sheikh and other jihadists with seditious conspiracy (i.e., conspiracy to levy war against the United States) was controversial at the time. It was a real asset to have, in the front office at Main Justice, an attorney of Merrick’s skill: a trial prosecutor’s grasp of strategy and an appellate lawyer’s understanding of potential legal perils. And, besides all that, he was a very nice guy.

Moreover, while my case was a success, it amply demonstrated that federal criminal law was ill-equipped to deal with international terrorism. Judge Garland is one of the lawyers who deserves credit for the mid-Nineties overhaul of counterterrorism law. Once these new statutes were finally enacted in 1996, you could still have a vigorous policy debate over whether international terrorism was principally a law-enforcement or a national-security challenge, but you could never again complain that the legal arsenal for prosecutions was lacking.

In terms of judicial philosophy, I would have deep disagreements with Judge Garland. He clerked for and was obviously deeply influenced by Justice William Brennan, who was about as much of a polar opposite to Justice Scalia as one could be. But there is no doubting Garland’s intellect and integrity. He is not someone a conservative or constitutional-originalist president would appoint; he is, however, as good as we could get from a president of the Left. I was pleased when President Clinton nominated him for the D.C. Circuit, and pleased when he was finally confirmed in 1997.

Of course, the situation today is much different.