After weeks of speculation, President Barack Obama has nominated federal appeals court judge Merrick Garland to replace the late Antonin Scalia on the Supreme Court.
The talking point that Garland is a non-partisan choice deserving quick, widespread confirmation is already spreading fast and wide across the web, but a deeper look shows that pro-lifers have every reason to hold the line against filling the vacancy until the next president has taken office.
It’s true that Garland has not ruled or commented directly on abortion, but there are other windows into his ideology. He has lavished praise on Justice Harry Blackmun, author of the legally indefensible Roe v. Wade, and formerly clerked for Justice William Brennan, a “living Constitution” proponent instrumental in shaping the “privacy” rationale that led to Roe. Seventy-five percent of his own law clerks have gone on to work for pro-abortion Supreme Court Justices like Ruth Bader Ginsburg and Elena Kagan, while just a quarter of them went on to originalist judges.
UPDATE 3/20/16: In May, Garland also voted with the majority of the DC Circuit Court of Appeals to deny the group an en banc hearing by the whole court in its case against the Obama Administration’s contraception mandate, which had the result of preserving an earlier ruling in favor of the mandate. And just minutes after Obama completed his remarks announcing the appointment, Planned Parenthood CEO Cecile Richards was seen entering the White House, presumably so Obama could reassure Richards of Garland’s commitment to upholding a right to abortion.
Further, in his nomination speech, Obama said:
Chief Judge Garland is more than just a brilliant legal mind, he’s someone who has a keen understanding that justice is about more than abstract legal theories, more than some footnote in a dusty case book.
Translation: Garland is willing to rule based on factors beyond the plain meaning of a law’s text and the clear intent of its authors.
Last week, Obama also said he was looking for a jurist who “cares about things like stare decisis and precedent.” Stare decisis is not completely baseless—valid relevant insights from past judges are of course worth considering—but it is a horrendously abused concept that is today taken to mean bad law such as Roe deserves to be upheld simply because it’s been around for so long.
Even the supposed assurances of his moderation are actually red flags. Columbia Law Professor David Pozen and ex-Garland clerk says his old boss is “not someone who likes to issue sweeping rulings” or “grand pronouncements that go beyond the case at hand.” This only sounds reasonable because judicial conservatives sometimes make the mistake of equating originalism with restraint.
But if you really believe the Constitution trumps all, then it shouldn’t matter whether the implications of a ruling are sweeping or not. The Constitution says what it says. It either does or doesn’t allow something, and a good judge’s job is simply to say so and let the chips fall where they may.
Indeed, the last time we got “restraint” of that sort was when Justice John Roberts concocted preposterous and contradictory mis-readings of Obamacare in order to rationalize his unwillingness to strike down major legislation and have it interpreted as intervention in a major political issue.
All this is why pro-aborts are satisfied with Obama right now—NARAL says “there are few more qualified candidates for the highest court in the land,” while ThinkProgress believes Garland “would likely vote much more often than not with the Supreme Court’s liberals, while occasionally casting a heterodox vote.”
Besides, we know how Obama thinks about abortion and the Constitution. He’s a judicial activist at heart and is wildly committed to abortion-on-demand at any time for any reason as a “constitutional right.” It is inconceivable that he would choose anyone he wasn’t 100% satisfied would vote his way on what matters most to him.
Unfortunately, Obama was able to use one of his opponents’ own words against pro-lifers:
Republican Senator Orrin Hatch, who was then chairman of the Senate Judiciary Committee, supported his nomination [by Bill Clinton in 1997]. Back then he said, “In all honesty, I would like to see one person come to this floor and say one reason why Merrick Garland does not deserve this position.” He actually accused fellow Senate Republicans of trying to obstruct Merrick’s confirmation of playing politics with judges and he has since said that Judge Garland would be a consensus nominee for the Supreme Court, who would be very well supported by all sides and there would be no question Merrick would be confirmed with bipartisan support.
Let this be a lesson to all politicians: bipartisanship is all well and good on issues of genuine agreement, but when you go out of your way to look good for independents, you only create soundbites that will eventually be used against you. Hatch has responded by insisting his opposition isn’t about Garland personally, but about “the best way for the Senate to do its job [being] to conduct the confirmation process after this toxic presidential election season is over.”
True enough, but it’s a fundamentally weaker position than the simple fact that a president who doesn’t respect the Constitution has picked a bad candidate for the job. Which is why pro-lifers need to prepare for the coming avalanche of “obstructionist Republicans block judge they admit is qualified because of politics” headlines, and pressure their senators to keep saying no.