Since Justice Antonin Scalia died suddenly in February, the Judicial Crisis Network has been on the front lines of the conservative fight to keep President Obama from filling the unexpected vacancy on the Supreme Court. Founded in 2004 as the Judicial Confirmation Network to press for Senate approval of President George W. Bush’s court nominees, the group is now coordinating the efforts of activist groups across the conservative firmament and has spent millions of dollars on TV and digital ads pressuring Republican senators to deny Obama’s nominee hearings or votes.
The effort has been, so far, remarkably successful. In the five weeks since Obama nominated U.S. Appeals Court Judge Merrick Garland to the high court, Garland has met with 10 Republican senators, and none subsequently changed their views on whether the Senate should act. Judicial Crisis Network Chief Counsel Carrie Severino sat down Friday to discuss why the blockade is holding and what’s ahead in the fight over Garland’s nomination. The interview has been edited for length.
Tell me how you see the state of play.
The Democrats have tried to take every opportunity they have. They’ve poured millions of dollars into attacking Republican senators without any real effect. The Republican coalition has held firm, and I think you’ve seen people coming out of those meetings even more convinced that Judge Garland is not the right person to carry on in Justice Scalia’s footsteps. In the middle of an election year it makes the most sense to let the people have a voice. We’re going to wait on this, and then we’ll have an opportunity to discuss the merits of Garland in particular more in November, at least in terms of the Senate.
Democrats are targeting the vulnerable incumbents — Kelly Ayotte of New Hampshire, Rob Portman of Ohio and so on. Those senators have stood their ground. Why is it good politics for these senators to maintain their stance? Why are Democrats wrong that they are going to pay at the ballot box for joining the leadership in the blockade?
At the end of the day, the American people do not want to see the Supreme Court shift dramatically to the left, and that is what would happen if Merrick Garland were confirmed. That’s not actually where the American people want to go, and the people who are most engaged on this issue are the base, are the people who are going to be most likely turning out for these senators. It doesn’t make sense for someone to pay attention to a bunch of hired protesters that just got brought in that would frankly not even vote for them anyway versus their real constituent base and the people who care the most about this issue. There are a lot of people who don’t know enough about the issue or don’t know enough about Judge Garland to care one way or the other. The Democratic base feels very strongly, the Republican base feels very strongly, and the people in the middle really haven’t learned that much about the issue and aren’t that engaged. There are other issues that they care more about.
You’re working with a lot of different groups that are engaged on a lot of different issues and represent different parts of the Republican base. Who seems to be most invested in this and most engaged and determined to make sure that this blockade holds?
We’ve seen a real engagement from the groups who recognize the threat to the values they care about the most. The National Rifle Association is very concerned about this nomination, because Judge Garland has a singularly bad record on the Second Amendment, even suggesting that he doesn’t believe the Second Amendment covers a right to have a weapon for your own protection in your own home. So, of course, they have activated the people who care about that. The National Federation of Independent Business is very concerned because they’ve gone into incredible detail looking at Judge Garland’s opinions and have concluded that he’s much too much in the pocket of big bureaucratic agencies like the National Labor Relations Board, like the Environmental Protection Agency. That’s why this is the first time in 73 years they’ve gotten engaged on this issue, and they have come out strongly on it.
You’ve seen pro-life groups very involved on this. They see things like Planned Parenthood and their strong support of Judge Garland, people like Senator [Kirsten] Gillibrand commenting on his view of reproductive rights and saying how they support that. This is clearly someone who would be a danger on their issues. You see a lot of other groups that have broader mandates, like the Tea Party Patriots, who are getting involved. And there are people who are concerned about religious freedom and are concerned about Judge Garland’s record on this issue. He did have a chance to vote on the Priests for Life case that came up and was consolidated with the Little Sisters case — he thought that the D.C. Circuit got that right in not respecting the rights of the plaintiffs in that case. So there’s just a whole range of issues and people.
Democrats point to polls that say voters want action on this nomination, and they are pushing to make this an issue in this year’s Senate campaigns. What is your group planning to do to counter that?
They’re really just trying to make his nomination into a political weapon. But at the end of the day, I think that’s not going to be successful, because the voters have not fully learned about Judge Garland’s record yet, and even the polls they are citing are really a coin toss. It is within the margin of error whether they even have a majority that are interested in this. Our goal is to help inform the voters about Judge Garland’s actual record and counter some of the president’s spin to show that he would be a very reliable fifth vote on a host of issues and also to make sure that red-state senators are also being held accountable. Senators in places like West Virginia, like Colorado, like North Dakota — their constituents are going to want to know: Are you standing with President Obama and just voting in lock step with him, or are you actually representing your actual constituents? I think a lot of the Democratic senators are breathing a sigh of relief to know that he’s not going to get a hearing, because I don’t think they want to be on the record voting for another liberal nominee from President Obama.
Let’s fast-forward to November and assume the status quo has held. If we have a President Cruz or President Trump, we know we won’t have a Justice Garland. If it goes in a different direction — if we have a President Clinton or President Sanders — what does that mean? Earlier in President Obama’s term, you said, “We could do a lot worse than Merrick Garland” to fill a previous vacancy. Do you think he could be the best of many bad options for conservatives if we have a President Clinton or Sanders?
Garland’s record shows that he would be an absolutely reliable vote on a whole host of issues to just cement liberal dominance on the court. The thing that might weigh in his favor is simply his age — that he’s a little older than some of their other nominees. Maybe they could do worse. They could find someone significantly younger. They could find someone who is completely unhinged from constitutional limits, like Eric Holder or a Goodwin Liu.
But I think it’s far too early to say that it makes any kind of political sense to confirm Garland, because his record does show him to be absolutely consistent as a liberal vote. When one looks at some of these decisions that I think have really strayed very far from what the Constitution has required and what the law has required, those were always instances where four liberal justices were appealing to Justice Anthony Kennedy for a fifth vote. Those were moderating their opinions. I am confident the American public is not going to want to see a court that has those four justices going further to the left because they are not going to have to appeal to a moderate like Kennedy if they have Judge Garland as that guaranteed fifth vote.