How I answered a survey from the Progressive Change Campaign Committee about the Merrick Garland nomination

I received an email this morning from the Progressive Change Campaign Committee,, asking that I complete a survey on the Garland nomination.  The email began with this question: What do you think about Merrick Garland and the Supreme Court vacancy now?  It continued:

The president nominated Merrick Garland to fill the vacancy on the Supreme Court.

After a day of media reporting on his record, and Senate Democrats calling for the process to move forward, we want to know how you feel about this fight.

Your answers below will help shape the PCCC’s activism on this.

Here are the survey questions and my answers:

QUESTION: Overall, how do you feel about President Obama’s decision to nominate Merrick Garland?

1) Very Enthusiastic   Somewhat Enthusiastic   2) Pretty underwhelmed   3) I do not like this decision   4) I don’t know

ANSWER: I do not like this decision


QUESTION: How enthusiastic are you to keep taking action against Senate Republicans to allow a hearing and fair process to move forward for Merrick Garland?

1) Very psyched. Ready to fight those Republicans!   2) Somewhat enthused. But we all need to take some action.   3) I still need to learn more before taking any action.   4) I’m not feeling it at all.

ANSWER: I still need to learn more before taking any action.

QUESTION: Wednesday, the PCCC launched a new petition saying this:

Petition: Now that the President followed the Constitution and nominated a Supreme Court Justice, Senate Republicans should do their job and allow a fair hearing and process to move forward. The Court needs someone who understands the real world impact of the Court’s decisions on hardworking Americans. 

Should we add your name to this petition?

1) Yes, add me as a signer.   2) No, do not add me as a signer.

ANSWER: No, do not add me as a signer.

QUESTION:  What do you like most about Merrick Garland being the nominee?

ANSWER: That he once dissented in a case in which his two panel colleagues (one of them John Roberts) ruled against a whistleblower and the federal government (who were on the same side in the case). Although the narrow issue was whether or not the False Claims Act applies to Amtrak contractors, Garland’s dissent did indicate strong support for the role of whistleblowers.  He dissented similarly in a free-press case involving disclosure of the names of whistleblowers (in a case in which the criminal defendant requesting the disclosure was actually a sympathetic figure and was innocent).

QUESTION: What do you like least about Merrick Garland being the nominee?

That his near-religious belief in the sanctity of precedent may mean that the precedents set by the Conservative Legal Movement justices, including those that overturned earlier precedents will remain law until one of the four conservative justices is replaced by a Dem president.  In other words, that the panoply of dramatic changes in the law amounting to a Conservative Legal Movement checklist with, by now, lots of checks indicating completion—Sherman’s-march-through-Georgia- style—will remain law for at least the next several years.  Citizens United and the Voting Rights Act opinions are just two examples.

QUESTION: What do you most still want to learn about Merrick Garland?

ANSWER: Because he is a judge on the D.C. Circuit rather than on one of the other regional circuit courts, he has never ruled in a habeas-petition case challenging the constitutionality of a state-court criminal conviction, and therefore on the threshold issue of federal-court jurisdiction in such cases. In other words: on the right of state courts to violate the constitutional rights of individuals.  I also would like to know how broadly he views the Supreme Court-fabricated “qualified immunity” of police officers and prosecutors who are sued for, say, withholding exculpatory evidence or just plain fabricating evidence.

An article published late yesterday on Politico titled “Progressives dream of a more liberal court pick” and subtitled “For now, outside groups are backing Merrick Garland — but they hope for a Clinton or Sanders victory to bring a fresh nominee”, includes this:

In an interview on C-Span’s “Newsmakers,” Nan Aron, founder and president of the Alliance for Justice, said it was difficult to surmise the role Garland would assume on the court if confirmed — whether he would be a reliable liberal or a swing vote in the mold of Justice Anthony Kennedy.

“I can say this much: His record, from what we know on the Circuit Court of Appeals, certainly differs very much from Antonin Scalia’s,” Aron said. “He is a judge that has been very respectful of the role agencies play … that’s a far cry from Antonin Scalia, who was very critical of what agencies do.”

“But she, too, refused to say whether she would want to see Garland re-nominated.

“Oh, I’m not going there,” Aron said during the C-Span interview, conducted with reporters from POLITICO and The Wall Street Journal. Noting that the next president will likely have more vacancies to fill, “I think we ought to confirm Merrick Garland this year and then see what happens in the future.”

I have no idea why Aron expects Kennedy, Thomas, Roberts or Alito to leave the Court before Ginsberg does, or to leave the court any time soon, as she seems to indicate by that last sentence.  This—this—appointment is what will determine whether the Conservative Legal Movement succeeds in freezing the law for years to come or not.

It’s long been a given that Supreme Court nominees profess themselves just baseball referees calling balls and strikes (Roberts’ infamous phrase, but others before and after have provided paraphrases) and strong believers in adherence to precedent.  If Garland is accorded a Judiciary Committee hearing, he should do what Roberts and Alito so unabashedly did: lie.

And if confirmed, he should promptly join his four Democratic-appointee colleagues in their own march through Georgia and then on to Appomattox. But he probably won’t.  He believes in precedent, see.  Even if he will be the only member of the court who does.


ADDENDUM: Reader Urban Legend and I had the following exchange in the Comments thread:

Urban Legend

March 19, 2016 2:18 pm

Isn’t the role of a Supreme Court justice with respect to precedent vastly different from that of a lower court judge? The Supreme Court justice has no restraint on saying, “This decision was wrong.” Even a Federal Court of Appeals judge doesn’t have that freedom.



March 20, 2016 1:17 pm

Hi, Urban. Yes, it’s true that the role of a Supreme Court justice with respect to precedent vastly different from that of a lower court judge. But there are two things that matter here, and they are related. One is how willing a Supreme Court justice is to overrule precedent. The other is what an appeals court judge does when there is what’s called a mixed question of law and fact.

Here are a few excerpts from progressive election-law guru Rick Hasen, a law prof. at UC-Irvine, and Election Law Blog blogger, on Thursday:

“The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.

“Judge Garland seems much less likely to go out on a limb, however [on voting rights].

“Conclusion. Judge Garland, more than anything else, appears to be a thoughtful and scholarly judge who takes serious claims seriously and who shows liberal, but not radically liberal, leanings in election law cases. Whether he would pass a Bernie Sanders or Hillary Clinton litmus test to overturn Citizens United is highly doubtful. If faced with the chance, he could well become a bold Justice; who knows? But his record of caution and incrementalism says that would be no sure bet.”

And there is this blog post by Scotusblog’s Tom Goldstein from 2010, when Garland was being considered to replace Stevens, titled “Merrick Garland: To the right of Scalia on criminal justice,”, noted in Salon a couple days ago, and at Reason on Thursday.

Reason also notes that Garland voted in favor of expansive Bush administration policies during the war on terror. He’s not quite Samuel Alito, who strikes me as genuinely paranoid and is an all-but-automatic vote for the government, state and federal, in criminal and habeas cases, immunity for cops and prosecutors in civil rights lawsuits, and War on Terror issues. In the first two of those types, he aggressively advocates, in opinions, dissents, and dissents from denials of “cert.” petition grants, that the court cross the line from the usual role of a Supreme Court justice to proxy for the government, cops and prosecutors, by repeatedly urging the Court, sometimes successfully, sometimes not, to play the role of what’s called a “court of error,” simply “correcting” what he sees is the lower appellate court’s mere error on application of existing law. But he’s not that far from Alito, apparently.

Hasen really gets to the heart of one of the two matters: whether Garland as a Supreme Court justice, Garland would consider sacrosanct the current precedents that the 5-4 Conservative Legal Movement justices made law by expressly or tacitly overturning other precedent, thus freezing the law at the point at which the Conservative Legal Movement controlled the court.

Goldstein and the Reason and Salon bloggers reach the heart of the other matter: apart from respect for precedent, it appears that Garland himself is not a civil libertarian in respects that are so critical now: law enforcement latitude and the balance between national security and civil liberties, including privacy.

On the issue of degrees of respect for precedent, it’s really important, I think, for me to note that the Conservative Legal Movement justices’ rampage is unprecedented since the mid-1930s, when the Court began to overrule what’s known as the Lochner-era Supreme Court opinions that turned the Constitution into a device that guarantees complete economic laissez-faire.

After the 1930’s the strong norm was that overtly or even tacitly overturning Supreme Court precedent was very rare. Brown v. Bd. of Ed. was the most prominent instance of the express overruling of precedent—there were others—but not many. Mostly, there were narrowings rather than overt overturnings, most notably in criminal law; the Exclusionary Rule cases and many Fourth Amendment cases are examples. And redefining certain terms and standards of legal review, expressly or clearly yet unacknowledged, has been another big tactic; this is how race discrimination has turned from a proscription that protects racial minorities intone that protects whites, including upscale ones (which is the situation in Fisher v. U. Texas, Austin, a case argued at the court last winter and which is at the court for its second go-around and which was argued there. last winter.

But in (I think it was) 2003, in Lawrence v. Texas, the Court, 5-4, with Kennedy writing the opinion, expressly overruled a then-relatively-recent Supreme Court opinion that had upheld a state law criminalizing sodomy. It was a very big deal not just because it was a huge victory for gay rights but because it expressly overruled relatively recent precedent.

So … there it is. This is likely the only chance for the next several years to gain the fifth vote to overturn the Conservative Legal Movement’s political agenda imposed by a bare majority of Supreme Court justices. That’s the essence of the issue here.

Added 3/20 at 2:04 p.m.