Today should be a day of civic pride: a time when the system of government set into place by the Founders functions once more. But the extremist ideology of today’s Republican Party has instead made it a day of dread.
On the face of it, Judge Merrick Garland is exactly the sort of person who should be on the Supreme Court, according to the logic of the Constitution. In an era of divided government, Garland is a consensus candidate—relatively conservative on issues of criminal justice, relatively liberal on issues of administrative and constitutional law. He is widely respected by conservative judges and justices. Over 18 years on the bench, he has shown himself to be intelligent, fair, and moderate–much to the consternation of some liberals, in fact.
I was one of Judge Garland’s law clerks in his second year on the D.C. Circuit bench, back in 1998. Perhaps it sounds self-serving to say so, but Judge Garland is one of the hardest working, fairest-minded people I’ve ever met. He worked harder than any of us, staying late into the night, sometimes cutting out of the office to make time for his kids before coming back in for the midnight shift. Watching him stand alongside President Obama this morning filled me with respect and pride–in the moments when I could forget the disrespect he is soon to endure.
I also had some firsthand exposure to how he thinks. There was not a single case I worked on with him, from the most mundane Federal Energy Regulation Commission matter to a 20-plus-year-old civil rights case, in which politics played into his considerations. Conscience, sure — Judge Garland often reminded me that there were human beings on both sides of these contentious cases—but never ideology.
Not all judges on the D.C. Circuit were of that persuasion. I was friends with clerks for other judges, and some (whom, of course, I won’t name) would simply tell their clerks how they wanted the case to come out, leaving the clerks to get from point A to point B. That was never my experience with Judge Garland.
Chief Justice Roberts once quipped that “any time Judge Garland disagrees, you know you’re in a difficult area.” That was certainly my experience as a 27-year-old law clerk: Judge Garland wrote opinions himself, checked our research, peppered us with questions. It was terrifying, but it was also an honor.
But none of this may matter. As we all know, Senate Republicans prefer to take their chances on a Trump presidency rather than fulfill the oaths they took, hands on the Bible, to uphold the Constitution.
This is indeed unprecedented. No “Thurmond Rule,” no filibuster, no foot-dragging can compare to a flat refusal to hold hearings on a Supreme Court nominee fully nine months before the end of a presidential term. But then, what about this horrific political year isn’t unprecedented? Senate Republicans may moan about Donald Trump, but it’s just a short hop from their extremism to his.
And so, instead of talking about a future Justice Garland’s views on constitutional interpretation, my fellow pundits are doing the politics. Garland’s age makes him a potential compromise candidate–maybe some Republicans might prefer a 63-year-old moderate to Hillary Clinton’s future 40-year-old liberal. Or maybe it was too safe a pick, Obama’s first white male appointee. Sen. Charles Grassley’s election fight might push him to hold hearings after all; he’s getting excoriated in the press.
Everything other than who Merrick Garland is, and what he stands for. Imagine if this were a normal year, in which the Senate was doing its job, and we discussed questions like these:
— How his work prosecuting the Unabomber and Timothy McVeigh makes him an ideal candidate for the Supreme Court in an age of terrorism (or, if you’re a civil libertarian, a potentially dangerous vote for more surveillance and less privacy).
— How his academic background in antitrust law might inform high-profile cases on corporate personhood (Citizens United and Hobby Lobby, for example).
— What he meant in his statement, at his 1995 confirmation hearing, that “[f]ederal judges do not have roving commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it.” How might that affect high-profile issues like abortion?
These are the kinds of meaty, substantive questions we should be talking about right now. Reasonable people can disagree about them and should. That’s how the system is meant to work. But now it sounds naïve to bring them up.
“Let the People Decide!” the Republicans are shouting in unison. As if the people didn’t decide in 2012, when they elected President Obama to a second four-year term.
What can be done, other than the jockeying for public-relations position between the partisans of left and right? I have three ideas.
First, if the Senate won’t hold hearings on Judge Garland, we in the press should. Not just punditry over Obama’s political calculations, but intelligent discussions about Judge Garland’s judicial philosophy. Maybe it doesn’t matter, but someone has to act as though we still have a functioning democracy, right?
Second, it’s well-known that Judge Garland is widely respected among conservative judges (and justices). What if these judges, who enjoy lifetime appointments, broke with their ideological companions at the Federalist Society and the “Judicial Crisis Network” and urged the Senate to at least conduct hearings? Someone has to step up and be the Ted Olsen of the #SCOTUSNominee battle–Olsen being the famed conservative lawyer and Bush solicitor general who co-argued key same-sex marriage cases and helped lift that issue above partisan politics. Will anyone dare?
Third, I’m hopeful that the circus-like, Trump-like atmosphere of the nomination process will somehow enable other people to get to know the man President Obama called “a serious man and an exemplary judge,” someone possessed of “decency, humanity, and common sense.”
In my own limited way, I had that opportunity as a young lawyer in the 1990s. And I am convinced that the more people have that chance now, the more they will appreciate that Judge Garland is a supremely decent man, caught in the middle of indecent times.