SFC (RET) U.S. Army Combat Veteran, Patriot, Conservative
Let's get something straight: Merrick Garland was not mistreated, screwed or otherwise given the shaft
The Senate just thought it would be bad for the country to confirm him. And they were right.
As we move toward the likely confirmation of Neil Gorsuch to the U.S. Supreme Court, there is a bit of Beltway conventional wisdom surrounding this whole matter that needs to be exploded. One might sum it up thusly: No matter what happens with Gorsuch, the horrible way Merrick Garland was treated was shameful.
The Obama nominee for the same seat, whose nomination expired as Senate Republicans gave him neither a hearing nor a vote, is said to have deserved better than his fate. A well-qualified judge of good character by all accounts, Garland is portrayed as a victim of unthinkable Republican cruelty for the way his nomination was sent to the trash compactor of history.
Stephen Henderson the Detroit Free Press goes so far as to suggest that if Gorsuch had any decency, he would bail on the process in protest of how Garland was treated:
Still, if Gorsuch were really decent, if he really loved judicial independence and respected his colleagues as much as he said he did this week during his hearings, he’d do something he’s nearly certain not to do: He’d withdraw his nomination.
Yes. He’d thank the Senate for its consideration, maybe even wait until the Judiciary Committee votes his nomination onto the Senate floor, and then he’d step away.
And he’d say something like this: “As much as I’m honored to be near achieving a lifelong dream of sitting on the Supreme Court, I can’t look away from the terrible injustice that was done to my colleague, Merrick Garland, the original nominee for this seat. Garland never got a hearing, not in nearly a year of waiting. And, as his colleague, a member of a judicial establishment that needs to push back against the garish manipulation of our work by the political branches, I’m saying, 'enough. I won’t be part of it. I will not benefit from the political shenanigans that robbed Garland, a judge as good and accomplished and respectable as I am, of the fairness the other two branches of governance owe nominees from my branch.' ”
It’d blow people's minds.
And I’ve come to believe that it’s the only way to take some of the air out of the escalating politicization of the judicial branch.
Judges like Gorsuch have to take a stand against it. And not just Gorsuch alone. The judiciary, as a whole, has to refuse to take part in the increasingly partisan nature of deliberations about judges and their posts, and insist that, as a matter of routine, the political branches respect their independence.
Now, if Garland had truly been a victim of a terrible injustice - a product of the politicization of the courts - Henderson might have a small point. But he wasn't, so he doesn't.
Garland was not mistreated. Garland had no injustice done to him. Garland was not smeared, defamed or otherwise done wrong. Garland was simply not confirmed to the Supreme Court. It was nothing personal, and I can't recall a single Republican launching a nasty attack or otherwise saying a word to harm Garland's reputation. To this day the bipartisan consensus seems to be that Garland is a fair and competent judge.
But Senate Republicans did not believe it would be in the best interests of the country to add a fifth liberal Justice to the Court, thus ensuring a left-wing majority that might endure for a generation or longer. Garland might be a good and decent man, but that would not erase the harm if he were to join his colleagues in trashing the First, Second and Tenth Amendments, or in chipping away at limits on the powers of the federal government, or in otherwise inventing politically motivated pretexts for anti-constitutional rulings.
You can say it's unfair if you want, since the GOP will no doubt confirm a conservative Justice nominated to replace a liberal one. But if they do, it will be because they have a majority and they can. Similarly, they had a majority last year when asked by Obama to replace Scalia with Garland and tilt the Court's majority to the left. They correctly believed that left-wing control of the nation's highest court would have been a disaster, and declined to allow it.
That was not an injustice perpetrated on Merrick Garland. It was the Senate withholding its consent for his appointment, which the Senate has every right to do.
Now, had Senate Republicans conducted hearings that functioned as a thinly veiled show trial in order to justify their rejection of Garland, that would have been an injustice. There was no sense putting Garland through all that when he wasn't going to be confirmed no matter what happened.
Which reminds me: You know who was the victim of a true injustice? Robert Bork. He was also nominated to the Supreme Court and was also eminently qualified. But rather than simply have Democrat senators reject him because they didn't like his legal philosophies, Bork was forced to listen to slanders like this one from the likes of Ted Kennedy:https://www.hermancain.com/lets-get-something-straight-merrick-garland
Now there's a nominee who was subjected to true injustice. So was Clarence Thomas, who was subjected to an absurd spectacle after someone illegally leaked an FBI file full of unconfirmed allegations against him by a woman who never intended to make her statements public.
These men were made out by Democrats and the media to be absolute monsters, simply for the sake of politics. Merrick Garland? He simply wasn't confirmed.
Now, if someone had sewn Judge Garland into a burlap sack with a rabid animal and tossed him in the Straits of Mackinac - all because they didn't agree with his politics - then we could say without reservation that the way he was treated had been awful. But who would be psychotic enough to suggest such a thing?
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