I think very highly of Merrick Garland, whom President Obama has nominated to fill the Supreme Court seat of the late, legendary Justice Antonin Scalia. Merrick was a voice of reason and sound judgment as a top official in the Clinton Justice Department during the Nineties when I was prosecuting terrorists. It seems hard to believe now, but our decision to charge the Blind Sheikh and other jihadists with seditious conspiracy (i.e., conspiracy to levy war against the United States) was controversial at the time. It was a real asset to have, in the front office at Main Justice, an attorney of Merrick’s skill: a trial prosecutor’s grasp of strategy and an appellate lawyer’s understanding of potential legal perils. And, besides all that, he was a very nice guy.
Moreover, while my case was a success, it amply demonstrated that federal criminal law was ill-equipped to deal with international terrorism. Judge Garland is one of the lawyers who deserves credit for the mid-Nineties overhaul of counterterrorism law. Once these new statutes were finally enacted in 1996, you could still have a vigorous policy debate over whether international terrorism was principally a law-enforcement or a national-security challenge, but you could never again complain that the legal arsenal for prosecutions was lacking.
In terms of judicial philosophy, I would have deep disagreements with Judge Garland. He clerked for and was obviously deeply influenced by Justice William Brennan, who was about as much of a polar opposite to Justice Scalia as one could be. But there is no doubting Garland’s intellect and integrity. He is not someone a conservative or constitutional-originalist president would appoint; he is, however, as good as we could get from a president of the Left. I was pleased when President Clinton nominated him for the D.C. Circuit, and pleased when he was finally confirmed in 1997.
Of course, the situation today is much different.
It is an enduring disgrace that, upon taking control of the Senate after the 2014 election, Republicans continued entertaining and mostly confirming President Obama’s appointments to the bench and high executive-branch offices. The president has imperiously issued lawless executive orders, some of which – in the immigration area – even he previously conceded were outside his authority. He has serially violated his oath to execute the laws faithfully. The Obama administration has abused the federal bureaucracy, turning it into a politicized weapon against conservatives, Obama critics, the nation’s police departments, and scapegoats such as the producer of the anti-Muslim video the administration falsely blamed for the Benghazi massacre.
In response (or, rather, in dereliction), Republicans have been unwilling to consider impeaching even the executive-branch officials directly responsible for carrying out this misconduct. They have also forfeited the constitutional power of the purse, the main check the Framers gave Congress against rogue executive behavior. That has left Congress’s power over appointments as the only leverage. Yet, Republicans have largely shied from using even that – desperate to show that they can “govern” and “make Washington work,” even if that means enabling anti-constitutional governance.
Consequently, even if Senate Republicans did not have solid constitutional authority to refuse to entertain Obama’s judicial appointments (they do), and even if there were not a rich record of Democratic Senate obstruction of outstanding Republican judicial nominees (there is), I would strenuously oppose the consideration of anyObama nominee for a lifetime appointment on the nation’s highest court, no matter how well I think of the nominee.
Obama is a lame duck who has already done lasting damage to the separation of powers that undergirds our constitutional system. He has already put his stamp on the federal judiciary: Besides two Supreme Court justices, he will have placed well over 300 like-minded, life-tenured appointees on the bench by the time he leaves office. He should not be permitted to further shape the ideological direction of the Supreme Court, especially with several cases on the horizon that challenge Obama policies implemented by unilateral, legally dubious executive action.
The timing of Justice Scalia’s tragic death not only moves the Supreme Court front and center as a presidential campaign issue; it also gives the American people a unique opportunity to choose what type of justice should assume his seat. The Left relies on the courts to impose the aspects of its agenda that are so unpopular that Democrats don’t dare run on them or have them enacted by elected officials who must face the voters. That is why President Obama is mobilizing now: He knows that, as a campaign issue, the specter of Hillary Clinton’s choosing a “progressive” jurist who would dramatically shift the high court (imperiling free speech, Second Amendment, and privacy rights; upholding more central planning by Washington; empowering criminal defendants, terrorist combatants, and illegal aliens) will be a winning one, perhaps even a decisive one, for Republicans in November.
It is very simple: The next Supreme Court justice can be chosen by either President Obama or the American people. The American people should make the decision by electing the president best suited to appoint a justice who will honor the Constitution.
A version of this piece previously appeared on National Review Online.