On Wednesday, President Obama announced the third Supreme Court nominee of his presidency. His announcement was much to the dismay of the Senator Mitch McConnell-led Republicans who have spoken out vehemently against a pre-election Court nomination since the death of Justice Antonin Scalia in February. Unfortunately for the Republicans, the newest SCOTUS nominee, Merrick Garland, has a reputation in Washington as a moderate, meaning that any attempt to block the nomination may reflect badly upon the GOP if the Republicans are unable to stop the public from discovering the truth about him.
Merrick Garland as a SCOTUS nominee is not a new idea. After the retirement of Justice John Paul Stevens in 2010, The Washington Post included him in a list of several potential candidates for the SCOTUS nomination. At that time, the concern was not that Garland, as a SCOTUS nominee, would be considered too liberal but, instead, too conservative. The fear in 2010 was that Obama would fail to find support for the nominee from within his own party.
Justice Stevens, one of the longest-serving justices in history, had a reputation as one of the most liberal justices to ever sit on the country’s highest court. It may be surprising to many who are unfamiliar with the politics of the 1960s and 1970s, but Stevens received his federal appellate appointment from President Richard Nixon as a result of his prosecution of two corrupt judges during 1969’s Greenberg Commission, and he was President Gerald Ford’s only Supreme Court nominee. Even though Stevens owed his position to conservatives, his view of a number of important issues changed dramatically over the course of his 35-year tenure on the Supreme Court, and by the time of his retirement, he was a favorite of the left.
As for Obama’s latest SCOTUS nominee, Merrick Garland’s reputation is solidly centrist. When his name was mentioned in 2010, some of Washington’s more vehement liberals refused to support him as a SCOTUS nominee because of his support of President George Bush’s policy regarding Guantanamo Bay. Meanwhile, rumors abounded in Washington that numerous conservative judges were supportive of him as a nominee and that they had quietly advised the members of the GOP to stop any attacks before they started. Despite slight dissension on the left, most agreed, even in 2010, that, as a SCOTUS nominee, Garland was a wise choice who had the ability to bridge the gap between liberals and conservatives and prevent expanding division in the country.
Fast forward to today, and one will find the Senate Republicans, led by McConnell, issuing staunch refusals to confirm Obama’s latest SCOTUS nominee. Even Senator Orrin Hatch, who, according to New York Magazine, supported Garland as a potential nominee in 2010, has now proclaimed publicly that he will not support a Garland confirmation. Is the change of heart in the conservative party the result of changes in Garland’s stance on important issues? It does not appear so. From what one can gather from various reports of Republican nominee confirmation refusals, the change of heart appears to be a continuance of the GOP’s firm “anti” stance on everything related to Obama.
To give the Republicans their due, many are already claiming, less than 24 hours after Obama’s SCOTUS nominee announcement, that gun control concern is the main source of their opposition to Garland. However, Garland’s record on gun control is not clear enough to discern where he stands on the issue. Instead, his very limited gun control record shows him to be considerate and not at all divisive.
In the only case involving the Second Amendment in which Obama’s SCOTUS nominee has been involved since his appointment to the U.S. Court of Appeals for the District of Columbia, he supported a review of the appellate court’s decision. According to a summary of the case, six residents of Washington claimed the city’s ban on firearms to be unconstitutional. Garland was not a member of the three-judge panel that voted to strike portions of the 1975 Firearms Control Regulations Act. He did, however, vote in favor of a full-bench rehearing of the case, as did Judge A. Raymond Randolph, who is a favorite of the conservatives.
At the time of Parker v. District of Columbia, the conservative judicial approach to Second Amendment matters was much different than it is today. Even had the approach been the same as today, it is impossible to know how SCOTUS nominee Garland would have voted, as the petition for the en banc hearing was denied, and the case ended up before the U.S. Supreme Court as District of Columbia v. Heller. Incidentally, SCOTUS’ 2008 decision in this case was the first high-court decision affirming that an individual’s right to keep and bear arms is indeed protected by the Second Amendment.
In the case of Merrick Garland as a SCOTUS nominee, the American public needs to ignore the rhetoric and look at three things: judicial history, Garland’s record, and the political support he had in the past as a potential nominee. Looking at history, one can see that even a conservative judge, as Judge Stevens was when he was a nominee, can drastically alter his or her opinion during judicial tenure, meaning no one can foresee how a SCOTUS judge will rule in the future.
Looking at Garland’s record, one finds, as a prosecutor, during the early part of his career, he fought diligently for justice after the Oklahoma City bombing. In more recent years, as a federal appellate judge, he has demonstrated restraint and shown the need to carefully consider decisions, especially those that will set precedents, as the majority of Supreme Court decisions do. For reasonable Americans, the most desirable trait in a SCOTUS nominee is the ability and determination to carefully consider all aspects of important decisions.
Finally, prior to the Republicans’ declaration of war against anything Obama, Garland, even as a SCOTUS nominee, had the support of the many of the GOP’s leaders, and he still has a reputation as a consensus builder. Is it really possible that the opinions of the men and women who supported Obama’s latest SCOTUS nominee publicly only six years ago could really have changed that drastically, or are the changes simply the result of a case of political “follow the leader?”
[Photo by J. Scott Applewhite/AP Images]