Is Obama’s Supreme Court Pick Actually A Moderate?

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Blake Neff Reporter
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President Barack Obama’s choice of Merrick Garland to replace deceased Supreme Court Justice Antonin Scalia is already being presented as a very moderate choice intended to have bipartisan appeal. But a closer look at Garland’s record suggests his moderate reputation doesn’t necessarily reflect centrist views so much as a lack of opportunities to rule on hot-button issues.

Garland, who has been on the D.C. Circuit since 1997, doesn’t offer many of the potential benefits of some other picks: He’s older (meaning he likely won’t be perched on the Court for a generation), he’s not known as an archliberal (so he wouldn’t shift the Court’s ideology dramatically), and, and since he’s a white male, he won’t give Democrats a chance to tout the nomination of another woman or racial minority to the Court. What a Garland pick indicates is that Obama’s top priority is to simply get a Scalia replacement onto the Court by winning over a handful of moderate Republicans.

In fact, back in 2010, Republican Sen. Orrin Hatch of Utah had urged Obama to nominate Garland for the Supreme Court vacancy that was ultimately filled by Elena Kagan, saying Garland was a “consensus pick” that would cruise to confirmation. Now, Obama has belatedly called Hatch’s bluff.

But is Garland actually a moderate? Republicans won’t be entirely without ammunition if they want to argue that Garland is more liberal than he’s being presented as, but given his extremely long tenure on the bench, Garland’s career is surprisingly lacking in high-profile rulings on hot-button issues. To an extent, Garland’s “moderate” label could simply be due to having a rather dull career.

For instance, Garland has never ruled on an abortion case, has never looked at the death penalty, and he never handled a gay marriage case prior to the Supreme Court’s Obergefell v. Hodges decision legalizing gay marriage nationwide. On the subject of judicial activism, Garland said in a 1995 confirmation hearing that judges “do not have roving commissions to solve societal problems.” Only a few cases he has been involved with have ever gone to the Supreme Court.

One major area where conservatives may be able to attack Garland is on gun rights, but even there the evidence is limited. In 2007, a D.C. Circuit panel (which didn’t include Garland) struck down Washington D.C.’s strict handgun ban, in a case that served as predecessor to the Supreme Court’s District of Columbia v. Heller decision affirming the 2nd Amendment right to bear arms.

While Garland didn’t rule on the case, he was one of four judges on the Court (out of 10) who voted in favor of having the case reheard by the full D.C. Circuit. At the time, attorney Dave Kopel described Garland’s decision as a sign of hostility towards gun rights, since rehearing the case would have thrown out the initial 2-1 decision and potentially led to a reversal. But that’s not decisive evidence by itself; Garland after all was only voting to hear a particular case, and didn’t write or join any actual opinion. Garland also upheld the Clinton administration’s decision to retain records from the National Instant Check System for six months, a ruling critics say violated federal prohibitions on creating a national gun registry.

Any liberal tendencies by Garland on guns will be particularly notable for the GOP. Besides the issue’s resonance with the Republican base, it also has a direct connection to Justice Scalia’s legacy. Scalia authored the majority opinion in Heller, and it was probably the single most notable ruling he made while on the Court. GOP senators will be strongly pressured to resist any chance that Scalia’s legacy will be diluted by a new justice who will enable the Supreme Court to reverse itself and eliminate the individual right to bear arms.

Garland could also face some attacks over his rulings on environmental issues. In 2003, for instance, Garland helped uphold an EPA decision applying the Endangered Species Act to the arroyo toad, holding that the EPA was empowered by the Interstate Commerce Clause to protect the toad even though it lives only in California. Garland was also a dissenter in a court ruling that struck down some of the EPA’s anti-haze regulations, which critics argued were extremely burdensome to business.

In contrast to his somewhat liberal approach to guns, Garland’s rulings on criminal law are viewed as rather conservative, at least for a Democratic appointee. In 2003, for instance, Garland joined in a D.C. Circuit opinion that upheld the right to hold enemy combatants without trial in Guantanamo Bay. That ruling was later overturned by the Supreme Court in Rasul v. Bush. But even here, it is risky to read too much into Garland’s ruling. Like all appeals court judges, Garland must follow existing Supreme Court precedents, and his ruling on Guantanamo detainees was seen as a ruling where he was bound by such precedents.

Overall, then, much of Garland’s moderate reputation is premised on circumstantial rather than strong ideological evidence. He hasn’t been enmeshed in social issues, he hasn’t written sweeping opinions, he has never had an opinion he wrote struck down by the Supreme Court. He has, for the most part, been a quiet, restrained appeals court judge, but that doesn’t mean he wouldn’t vote with the liberal wing on most major cases.

And that may be all Obama and the Democrats need. They don’t have to replace Scalia with a liberal lion to drastically alter the Supreme Court. Simply replacing Scalia with a justice who will generally vote with the liberal wing would flip a host of 5-4 decisions in favor of liberal causes.


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