After Justice Scalia's death, I wrote this post on his successor and the Great Question. Today Juan Williams has an op-ed in the WSJ on the same theme: The Never-Ending Battle Over How to Read the Constitution: Whether Supreme Court nominee Merrick Garland is a 'centrist' distracts from a much bigger issue.
The article concludes:
The article concludes:
In today's debate regarding Merrick Garland's nomination to the court, much of the discussion concerns whether or not he is a "centrist." But the real question, for both sides, is how he regards the Constitution. On that point it is clear from his record that Judge Garland is firmly in the "living document" camp. The push-pull over the Constitution and the Supreme Court is a battle without end, and in the current phase with the eight-person bench likely to divide 4-4 on important cases, the contrast between the court with Scalia on it and the court with Judge Garland or any other Democratic nominee couldn't be greater.Of course, there is no chance whatever that President Obama will nominate anyone on the correct side of the Great Question, and if Hillary Clinton is elected in November there is no chance whatever that she will. A week ago, Stanford Law Professor and former Circuit Judge Michael McConnell suggested a course of action in this op-ed, also in the WSJ.
There is one course of action that satisfies the needs of Republican senators and President Obama. The Republicans will refrain from personal or ideological attacks on the nominee, but also refrain from any actions on the nomination before the election. The president and his allies will pretend to be outraged by this inaction, but their outrage is nothing but theater for the politically naive.The reason for the lame-duck confirmation in the event of a Democratic win is that Judge Garland is probably the best we can hope for from a Democrat President.
In November, when the people speak, either a Republican or a Democrat will be elected. If it is a Republican, that president will substitute a more conservative name for Merrick Garland's. If it is a Democrat, the Senate will swiftly take up the Garland nomination and confirm him.
Many of the president's detractors predicted, and his supporters hoped, he would make a more partisan and ideological choice. Many on the left are sorely disappointed with the nomination of a 63-year-old white Harvard-educated judge who tends to side with prosecutors over criminal defendants and to support national-security measures.Even though wrong on the Great Question, he tends to come down on the right side of cases on the issues this blog is about and CJLF is primarily concerned with. He would likely be the most favorable nominee of a Democratic President since, at least, Byron White.
And how likely is it that the Democratic Party candidate will win in November? A week ago, when this article came out, I was close to despondent that we were indeed headed for that train wreck. The Republican Party seemed intent on nominating an utterly unelectable candidate, setting itself up for the worst disaster since it made the same mistake in 1964. Maybe worse.
But in the last few days things have looked up a bit. Ted Cruz may clobber Donald Trump in Wisconsin, if the Fox Business poll is anywhere near right. That poll was taken before Trump's latest abortion gaffe, so he may have fallen further. I think a substantial share of Trump's support will fall away if he is not perceived as locking up the nomination before the convention, which will in turn prevent him from locking it up. It is hard to believe that a majority of the convention delegates, most of whom are party regulars, will ever vote for him once they are released from their pledges in the subsequent ballots.
So there is a ray of hope that we may just yet get a Scalia successor who believes in his vision.
Trump had one of the worst weeks I can remember in politics: Put out a hideous picture of the opponent's wife; have your campaign manager criminally charged; suggest withdrawing from NATO; then say women who have abortions should be punished, only to reverse field within hours. This is not to mention the poll showing that he has the highest negatives of any candidate, ever; and the looming civil deposition about the scam called "Trump University."
I suspect he's done, may God be praised.
As I've said before, Cruz for President. For judicial selection, we cannot do better.
Several Republican members of the Senate Judiciary Committee have recognized the hypocrisy of saying Obama's nominee shouldn't be confirmed in an election year and then confirming him anyway if the GOP loses this November. Mitch McConnell has said the Senate won't do this, and it would appear pretty unprincipled as an approach.
If (a big if I'll grant you) the Democrats win both the White House and the Senate, it could be hard to persuade them to let the current GOP Senate majority first block Garland and then have him anyway. If the Democrats win the White House but the GOP maintains control in the Senate, renominating him after Clinton's inauguration may be a sensible compromise.
"Several Republican members of the Senate Judiciary Committee have recognized the hypocrisy of saying Obama's nominee shouldn't be confirmed in an election year and then confirming him anyway if the GOP loses this November."
But they haven't said "Obama's nominee shouldn't be confirmed in an election year." They've said that the nominee should not be considered until after the voters have had their say.
If the voters choose Hillary (or Bernie) in November, they will have effectively ratified Obama's choice of Garland. There will be no hypocrisy in considering (and indeed confirming) him at that point.
If, on the other hand, the voters choose a Republican, it only makes sense for the future President, not the old one, to be the one to fill the vacancy.