Last week, President Obama proposed a Supreme Court nominee who, in ordinary times, would probably sail through his Senate confirmation hearings: chief judge of the U.S. Court of Appeals for the District of Columbia Circuit Merrick Garland, who had previously won support from both sides of the aisle.
But these are not ordinary times. Senators from the Republican Party, presently undergoing demolition by Donald Trump, had already decided not to even hold hearings on anyone Obama nominates to replace the late Antonin Scalia (PBUH), and rightbloggers have been picking and gathering nits to justify their historic inaction.
The well-regarded SCOTUSBLOG’s Tom Goldstein described Garland as “essentially the model, neutral judge” whose “opinions avoid unnecessary, sweeping pronouncements.” (Also, he “rarely votes in favor of criminal defendants’ appeals of their convictions.” Conservatives should love that!) GOP Senator Orrin Hatch previously predicted Obama wouldn’t nominate Garland based on the theory that “because this appointment is about the election…I’m pretty sure he’ll name someone the [liberal Democratic base] wants.” Garland is so moderate Bernie Sanders hopes he’ll be withdrawn.
But given the Republican pledge, it hardly matters. National Review’s Ed Whelan, for example, had years earlier praised Garland as “the best that conservatives could reasonably hope for from a Democratic President” when he turned up on a SCOTUS shortlist. Last week, Whelan held to that and added that he had “very high regard for his intellect and his decency” — but finally shrugged, “I believe that Garland would move the Court markedly to the Left,” and that was a good enough reason for the Senate to sit on its hands.
But what, exactly, was wrong with Garland? The brethren had to scramble a bit to come up with something.
“Garland comes in with a mixed record,” said the Blaze. For example: “As a Justice Department attorney in the 1990s, he assisted in the high-profile prosecutions of Oklahoma City bomber Timothy McVeigh and Unabomber Ted Kaczynski.” Since it’s the Blaze, I’m not sure which side of the mix they thought this represented.
“If confirmed, he would also be the fourth Jew on the Court, preserving the odd exclusion of evangelical Protestants,” huh-whatted Joel B. Pollak at breitbart.com.
It would help the brethren’s cause if they could get Garland on abortion, but his Court doesn’t handle many such cases. Reproductive rights policy watchers like Robin Marty at Cosmopolitan and Emily Shire at Bustle found Garland hard to read on the issue; Vox baldly stated he “has no public record on abortion,” and at Salon Erin Matson and Pamela Merritt thought it “untenable” that Obama would nominate an abortion-rights cipher “at a time when the Supreme Court is considering the most sweeping abortion access case in a generation.”
But that’s all an act, pro-lifers thought — Merrick is still ObamaHitler’s nominee, plus Planned Parenthood came out in favor of holding hearings on him. Boy, that almost sounds radical, now, doesn’t it? So rightbloggers went scraping for pro-choice dirt on him.
LifeNews was shaky coming out of the gate, just repeating “pro-abortion” over and over, e.g., Garland “is said to likely be another reliably liberal and pro-abortion judge on the Supreme Court” and “Garland was a one-time clerk for pro-abortion pro-abortion Justice William Brennan.” (Yes, they Jimmy Two-Times’d “pro-abortion” — must be an SEO thing.)
But later LifeNews found something: “Garland’s Former Clerks Later Served Pro-Abortion SCOTUS Judges By a 3–1 Margin.” That’s right: “Of his former law clerks, 33 went on to serve liberal Supreme Court justices. Only 11 were hired by constitutionalists.” Plus which, after Garland’s nomination “the CEO of the Planned Parenthood abortion business was spotted entering the White House.” Do we have to spell it out for you!?
Americans United for Life found proof that Garland is “Obama’s pro-abortion pick,” too: He once “described the release of the papers of the late Justice Blackmun — the author of one of the Supreme Court’s worst decisions, Roe v. Wade — as a ‘great gift to the country.’ ” Why, it’s almost like he called Roe itself a great gift — at least it is if you misread the sentence the way it seems designed to be misread.
Marjorie Dannenfelser of the Susan B. Anthony List probably put it best: “We do not know this nominee, but we do know Barack Obama.… Anyone he nominates will join the voting bloc on the court that consistently upholds abortion on demand.” Thus Garland is pro-choice by association.
But there’s one issue that animates the base better than abortion, and there the brethren had a fat enough scintilla to work with.
“Back in 2007,” National Review’s Carrie Severino told readers, “Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation.…”(Severino was referring to Parker v. District of Columbia, precursor to the guns-for-everybody milestone case D.C. v. Heller.) “A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling.”
Politifact pointed out that “rehearing a case en banc [as Garland wanted] is generally used when a case goes against precedent or presents a question of significant importance,” but so what? If you ain’t shootin’ off six-guns from the bench, brother, you ain’t getting that NRA blessing. Not only did Garland want a “do-over” in the D.C. gun case, said the NRA, he supported “upholding a federal registry of law-abiding gun owners derived from the instant-background-check system created by the Brady Bill” — the Brady Bill, Mandrake! — and so clearly “does not support the Second Amendment.”
Whatever the excuse, many of the brethren reiterated that it was silly to insist on hearings and Obama should drop the whole thing.
Since Sonia Sotomayor “basically lied through her teeth” in her hearings, asserted Jazz Shaw at Hot Air, “at this point, Supreme Court confirmation hearings for appointments from presidents of either party are far more reminiscent of Academy Awards acceptance speeches than any sort of fact-finding mission.” To paraphrase the old joke, their minds are already made up, don’t confuse them with testimony.
At Fox News, GOP Rep. Bob Goodlatte argued that Scalia’s passing “left a tremendous void in legal ideology and intellect that is almost impossible to fill,” while “the nomination of Chief Judge Merrick Garland raises too many questions as to what type of jurist he would be on the bench for a tenure that could possibly last for decades.” The obvious solution is to reanimate the corpse of Scalia, or at least let Clarence Thomas manipulate him like a ventriloquist’s dummy.
“Republicans will be accused in the media — actually they are already being accused — of being ‘obstructionists,’ ” griped Jeffrey Lord at Newsbusters. Ye-eah, but isn’t refusing to even hold hearings pretty much the definition of obstruction? “Let’s return to the days of yore — the summer and fall of 1987,” said Lord, and sure enough, he was talking about Robert Bork, who unlike Garland was a dangerous lunatic who not only got hearings but a full Senate vote; Lord didn’t explain the connection but was apparently still mad about Bork, and considered Garland’s nomination “a warning bell that it is finally time to give more attention to an Article V convention of states that can amend the Constitution.… If that proposal caught fire, the borking of Bork would pale with the media firestorm that would surround what is becoming the necessary next battle to rein in the federal judiciary.” That’ll teach Obama to nominate judges!
It got so ridiculous that GOP Presidential contender John Kasich, still working on his own pretense of moderation, complained about his fellow Republicans’ treatment of Garland, at which rightbloggers took great offense.
At Power Line, Paul Mirengoff called Kasich “Governor Can We All Get Along,” and said his candidacy should now “be rejected out of hand.” “Kasich has been trying to situate himself as the ‘adult in the room,’ but he really just comes off like an arrogant condescending jerk,” said The Right Scoop, clearly not trying to be the adult in any room. “This is either a sign of significant weakness regarding gun rights on Kasich’s part or a demonstration of absolute clueless behavior,” sputtered Jazz Shaw.
Veteran conservative columnist George F. Will also protested, though mainly on the grounds that obstruction would allow a potential President Trump to place an Incitatus on the Court — or, as Independent Sentinel put it, “Leading RINO Says We Should Go With Garland as Justice Because of Trump.”
Most observers have been expecting this to go on until the election when, in the likely event of a Democratic victory, the GOP would clasp Garland to its bosom. But on Sunday, Senate majority leader Mitch McConnell told the press he would advise his colleagues to resist Garland even if a Democrat wins the Presidency and the Senate goes Democrat. So it looks like they’re in a berserker phase and even normal political considerations are meaningless anymore. Rightbloggers should be proud; finally, Republican office-holders are no longer behaving even remotely like statesmen, but like rightbloggers.