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Garland’s “Centrism” Is No Reason for Confirmation

Merrick Garland, President Obama’s nominee to the Supreme Court, has been touted as a centrist on the court of appeals. Whatever reasons there are to confirm him, that should not be one of them.

First, the centrism of a lower court judge is likely an illusion. He is bound by Supreme Court precedent and thus has limited ability to change the status quo. Thus, he tends to be centrist simply by virtue of his position. To be sure, there are some lawless circuit judges, who do not make a good faith effort to follow Supreme Court precedent, but they are relatively few. And none of these could be serious candidates for the Supreme Court, where a record of reversal and obvious disobedience would be seized on by the opposition.

Ruth Bader Ginsburg was pretty faithful in applying precedents when she, like Garland, was on the D.C. circuit. And she too was praised as centrist. But on the Supreme Court she has led the left on the Court. Some of her rulings and views are in fact outlandish, if not Orwellian. For instance, she would have struck down Michigan’s ban on racial and gender preferences under the Equal Protection Clause. Thus, she would have used a Clause dedicated to racial equality to enforce racial inequality by judicial decree. She has praised the use of law of other nations as an aid to interpreting the United States Constitution. She has inappropriately used her opinions to call for political changes in law that have nothing to do with the organization of courts.

And of course she has been lauded by the left for doing so, now being called the notorious RBG. She has received an honorary degree from every Ivy League institution that gives honorary degrees, whereas sitting conservatives on the Court have never received any such degrees. And this is a second reason for discounting centrism. Our legal, academic and media culture provide incentives for “centrists” to move one way—to the left. With Souter, Blackmun and Stevens, we have seen this movie before and there is no reason to watch a rerun.

Finally, and most importantly, the appeal to centrism buys into a pernicious view that the Supreme Court is a political court that can and should be measured by its ideology. Whatever the force of centrism, that label has comes from measuring political outcomes, not legal reasoning. We want a lawful judge, not a judge of any particular ideology. In my view, of course, the lawful judge is an originalist judge, one who follows the original meaning of the Constitution, except for circumscribed rules of precedent—a practice that also flows from original meaning. We should be debating Garland’s faithfulness to this ideal, not his alleged centrism.

Reader Discussion

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on March 19, 2016 at 13:41:59 pm

ON THE "NEW COKE" THEORY OF JUDICIAL INTERPRETATION

" He is bound by Supreme Court precedent and thus has limited ability to change the status quo."

Professor:

You make a very good point re: limits of judicial discretion at Circuit level.

This is in many ways analogous to the situation of a mid-level manager in a corporation. He may wish to change product, methods, means, etc. but is prohibited from doing so by virtue of his position in the hierarchy.

Consider, the possibilities that open before him when he is, (at long last!) elevated to the upper echelons of responsibility and there is no other structure available to counter his proposals / vision.

Think back to the introduction of New Coke. Here, a man who had labored for years as a salesman for Coca Cola was elevated to the Supreme position in the corporation. Ahh! he now had a chance to install (but not instill) his vision of the proper sugary concoction (can you say, "the mysteries of life" decision/) for consumption by the masses. He proceeded to do precisely this.

His vision was, unfortunately for him, not shared by the many consumers of the product. It was roundly rejected.

He was gone - as was New Coke, re-re-placed by the traditional concoction.

Oops, I guess it doesn't work like that with the Black Robes. They apparently get to not only keep their jobs but to devise ever more sugary concoctions which are force fed down the gullet of the "consumers."
(Of course, some reprobate in another political branch may want to impose a "sugar" tax, but that is only incidental). We must contend with NEW COKE dispensed by the Black Robed confectioners as it would seem that they have misplaced the recipe. fortunately for the Coca-Cola corporation, the recipe was maintained under lock and key where it could be accessed.

I would say the Black robes should hire a safecracker - but it appears that the safe itself is lost.

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gabe
on March 21, 2016 at 08:41:43 am

"Centrist" is purely a word without substantial meaning. Primarily used by regressive progressives and media forces to silence opposition, and placate fence sitters. Not that the left actually care about so-called middle of the roaders or the middle class for that matter. Who really cares for the lukewarm anyway who Christ himself admonished saying he'd vomit them out?

You see, in the world of Obama and his minions there's left of center, the true left, and the "extremist" right. Right of center doesn't exist in their eyes. Then again, in reality, left of center is a misnomer. There is the diehard left and sheep. They are the devotees and willing dupes of the ideological equivalent of communism except in America of a more benign nature. And that's not likely to remain the case should Republicans allow Judge Merrick's nomination to succeed.

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EJW

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