The Republican Party’s incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick B. Garland radiates insincerity.
Republicans instantly responded to Antonin Scalia’s death by proclaiming that no nominee, however admirable in temperament, intellect and experience, would be accorded a hearing. They say their obduracy is right:
Because they have a right to be obdurate, there being no explicit constitutional proscription against this.
Or because President Obama’s demonstrated contempt for the Constitution’s explicit text and for implicit constitutional manners justifies Republicans reciprocating with contempt for his Supreme Court choice, regardless of its merits.
Or because, 24 years ago, then-Sen. Joe Biden — he is not often cited by Republicans seeking validation — suggested that a president’s right to nominate judges somehow expires, or becomes attenuated, in a “political season,” sometime after the midterm elections during a second presidential term.
Or because if a Republican president tried to fill a court vacancy during his eighth year, Democrats would behave the way Republicans are behaving.
In their tossed salad of situational ethics, the Republicans’ most contradictory and least conservative self-justification is: The court’s supposedly fragile legitimacy is endangered unless the electorate speaks before a vacancy is filled. The preposterous premise is that the court will be “politicized” unless vacancies are left vacant until a political campaign registers public opinion about, say, “Chevron deference.”
This legal doctrine actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.
In his record of deference, Garland resembles two justices nominated by presidents George W. Bush and Ronald Reagan, respectively — Chief Justice John G. Roberts Jr. and, even more, Scalia, who seems to be more revered than read by many conservatives. Garland’s reluctance to restrict the administrative state’s discretion would represent continuity in the chair he would fill.
Furthermore, Garland’s deference is also expressed in respect for precedents, which include the 2008 Heller decision. In it, the court (with Scalia writing for the majority) affirmed that the Second Amendment protects an individual’s right to bear arms.
Of the past 25 justices confirmed, beginning with Dwight Eisenhower’s 1954 nomination of Earl Warren as chief justice, Garland, 63, is the second-oldest nominee. (Lewis Powell was 64 when Richard Nixon selected him in 1971.) The average age of the 25 was 53. So Obama’s reach into the future through Garland is apt to be more limited than it would be with a younger nominee.
Republicans who vow to deny Garland a hearing and who pledge to support Donald Trump if he is their party’s nominee are saying: Democracy somehow requires that this vacancy on a non-majoritarian institution must be filled only after voters have had their say through the election of the next president. And constitutional values will be served if the vacancy is filled not by Garland but by someone chosen by President Trump, a stupendously uninformed dilettante who thinks judges “sign” what he refers to as “bills.” There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters — arrogance leavened by frivolousness.
Trump’s multiplying Republican apologists do not deny the self-evident — that he is as clueless regarding everything as he is about the nuclear triad. These invertebrate Republicans assume that as president he would surround himself with people unlike himself — wise and temperate advisers. So, we should wager everything on the hope that the man who says his “number one” foreign policy adviser is “myself” (because “I have a very good brain”) will succumb to humility and rely on people who actually know things. If Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do.