The NYT Is Still Salty About Merrick Garland

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Kevin Daley Supreme Court correspondent
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The New York Times editorial board attempted to give an appraisal of Justice Neil Gorsuch’s early tenure on the Supreme Court Sunday, but was overcome by a fit of pique.

The paper of record’s Sunday editorial ran under the headline “Justice Gorsuch Delivers.” Gorsuch himself is a peripheral figure in the Times’ tale, and our hero, we soon learn, is in fact Judge Merrick Garland.

The headline notwithstanding, the Times gives a mere four graphs to the editorial’s expressed purpose — assessment of Justice Gorsuch’s first months on the bench. Nor are their assessments particularly penetrating. They note and discuss at the level of generality his departure from Chief Justice John Roberts’ opinion in Trinity Lutheran v. Comer, and go on to note that Gorsuch consistently aligned with Justice Clarence Thomas when the Court divided along ideological lines. Cumulatively, this is little more than a terse and uninteresting summary of trends better discussed in detail elsewhere.

And this, we soon discover, isn’t really the purpose of the editorial. Six of the editorial’s eleven paragraphs concern the Senate GOP’s “audacious” blockade of Judge Merrick Garland’s ill-fated nomination to the high court. True enough — but for the goofy boilerplate which has come to characterize the conventional wisdom on this subject, from which the paper of record is not immune.

“[H]e knows he has already won the biggest fight of all: the theft of a Supreme Court seat from President Obama,” TheNYTimes intones. And again: “The problem is that he’s sitting in the seat that by rights should be occupied by Judge Garland.”

One is reminded of Judge Diarmuid O’Scannlain’s last dissents: “It is like we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream ‘separation of powers.'”

More conceits follow — Mitch McConnell flashed the depths of his cynicism, and exacerbated partisan entrenchment in abolishing the filibuster for Supreme Court nominees. The gulf between headline and copy grows further still.

Perhaps invoking Gorsuch’s name will become a proxy for relitigating the Garland nomination ad nauseam. This is a sorry fate for both men, and in it the Times makes itself party to the enormous pettiness that has come to characterize the judicial confirmation wars. Its history is littered with casualties: Robert Bork, Miguel Estrada, now Merrick Garland. And all along the Grey Lady has been a happy combatant.

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