Judge Merrick Garland – A Moderate? A Centrist? Not Hardly

This column by ACRU Policy Board Member Hans von Spakovsky was published March 21, 2016 by Conservative Review.

From almost the moment that Judge Merrick Garland’s name surfaced as President Barack Obama’s choice for the U.S. Supreme Court seat left vacant by Justice Antonin Scalia’s untimely death, the administration spin has been that Garland is a “centrist” and a “moderate” whom conservatives will be “hard-pressed to oppose.”

No one doubts that Garland, the chief judge of the D.C. Circuit Court of Appeals, is a very smart lawyer with an impressive background. He is a graduate of Harvard Law School and clerked for a liberal stalwart of the Supreme Court, William J. Brennan. But the decisions Garland has written or participated in during his almost 20 years as a judge, after being nominated by Bill Clinton and confirmed in 1997, reflect that he is neither a centrist nor a moderate.

In fact, Garland’s long judicial history leaves no doubt that he would be the solid fifth vote that President Obama and his liberal, progressive allies want on the Court to eviscerate any remaining limits on the power of the federal government; to roll back portions of the Bill of Rights they don’t like, such as the First and Second Amendments; and to create rights that don’t exist out of the “penumbras” of the Constitution.

Think Progress, the voice of the Left, says “that Garland would side with the Supreme Court’s liberal bloc in divided cases.” New York Magazine makes no bones about the fact that on the “most important issues facing the court — the environment and labor law, to name two — Garland is every bit as progressive as [Justice] Stevens.” An article in the New York Times reporting on a measure of ideology by four political scientists puts Garland to the left of Elena Kagan and Stephen Breyer, right next to Ruth Bader Ginsburg and Sonia Sotomayor, the two most consistently left-wing justices on the Court.

Garland is certainly hostile to the Second Amendment. In 2007, he voted in favor of en banc review of the District of Columbia Circuit’s decision invalidating the D.C. gun ban. In other words, he wanted to reconsider this decision, which the Supreme Court eventually affirmed in the historic Heller case, which finally established the “right to bear arms” as an individual right held by all Americans. In a 2000 case, Garland voted that a Clinton administration practice of retaining gun registration information for six months through the National Instant Check System was legal despite a 1968 federal law prohibiting federal gun registration and the 1994 law that created the instant background check that also banned the retention of such information.

So if you want someone who will actually rein in executive branch and independent agencies that are acting far beyond their statutory and regulatory mandates or violating the constitutional rights of citizens, Garland is not your man.

On the First Amendment, Garland joined a 2008 opinion that invalidated campaign finance regulations issued by the Federal Election Commission because they weren’t stringent enough to satisfy him in implementing the McCain-Feingold law, the infamous “reform” legislation that restricted the First Amendment activity of candidates and citizens. Parts of it were found unconstitutional by the Supreme Court in the Citizens United decision in 2010.

How dangerous would Garland’s confirmation be? So damaging that the National Federation of Independent Business, which represents small businesses across the country, for the first time in its more than 70-year history is opposing a Supreme Court nominee. Juanita Duggan, the president and CEO of the NFIB, says that Garland “would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers.” And his decisions bear that out.

For example, in the labor area, an analysis of Garland’s decisions involving the National Labor Relations Board by Harvard Law professors Benjamin Sachs and Jack Goldsmith found that Garland sided with the NLRB and ruled against businesses and in favor of unions in the overwhelming majority of cases. But his deference to the NLRB wasn’t consistent: he overturned NLRB decisions that were unfavorable to unions. As the Wall Street Journal concluded, Garland’s deference to the NLRB’s decisions has “a decidedly progressive tilt.”

In case after case involving other federal agencies such as the Environmental Protection Agency, Judge Garland almost always sides with the agency. As Tom Goldstein of SCOTUSblog has pointed out in a summary of Garland’s most significant cases when he was first mentioned as a possible nominee, Garland has “strong views favoring deference to agency decisionmaking.” This is a “crucial quality” of Garland for President Obama, according to New York Magazine, since Scalia’s replacement must be someone who will “protect the legislative gains of his presidency.”

So if you want someone who will actually rein in executive branch and independent agencies that are acting far beyond their statutory and regulatory mandates or violating the constitutional rights of citizens, Garland is not your man. The only time he seems to not like what agencies are doing is when, for example, left-wing environmental advocacy groups claim that agencies like the EPA aren’t doing enough or the NLRB is supposedly infringing on a union or a collective bargaining agreement.

That is why President Obama would like Garland on the Supreme Court — to be the fifth vote approving unilateral executive actions by the government in cases ranging from U.S. v. Texas, the challenge to Obama’s administrative amnesty plan by 26 states, to the Little Sisters of the Poor v. Burwell, the challenge by a group of nuns to the Obamacare abortion/contraceptive mandate.

The American people should be empowered to have a say in who fills that seat by their choice of who will become president.

One must keep in mind that federal appeals court judges are supposed to be bound by Supreme Court precedent. They have no legitimate ability to strike out on their own and rule contrary to Supreme Court jurisprudence on issues that deeply divide our country, although they sometimes do. But once on the Supreme Court, a decidedly liberal judge such as Merrick Garland will have the ability to vote with his fellow progressives to change precedents on every ideologically divisive issue like race, affirmative action, abortion, voting issues, gun rights, and capital punishment as they see fit.

Of course, we really shouldn’t even be discussing Merrick Garland’s approach to deciding legal issues or his view of the Constitution and the rule of law. We are in the midst of a presidential election, and the Senate has a long tradition of not considering vacancies that occur in an election year. The individual chosen to fill this seat could very well determine the direction of the Supreme Court — and whether we remain a constitutional republic — for decades after President Obama has left office.

The American people should be empowered to have a say in who fills that seat by their choice of who will become president. The stakes are simply too high to deprive voters of their say in who gets to fill this critical seat on the nation’s highest court.