George Leef’s latest Forbes column explains why the U.S. Senate would be wise to take a pass on President Obama’s latest Supreme Court nominee.
President Barack Obama’s nominee to succeed the late Antonin Scalia on the Supreme Court, Judge Merrick Garland, is said to be a good, reasonable pick because he is a judicial “moderate.” Assuming that there is such a thing as a judicial moderate and that Judge Garland is one, I’m afraid that he is not the sort of jurist we should want to see on our highest court.
In our political lexicon, justices such as Scalia and Thomas are “right-wing” because they favor an originalist view of the Constitution – one that preserves federalism and the intended limits on the powers of each branch. Conversely, other justices are called “left-wing” because they adopt an expansive, “living Constitution” approach that seldom strikes down any assertion of federal authority—Justice Ruth Bader Ginsburg, for example.
Thus, when we hear Judge Garland called “moderate” that suggests that he is somewhere in the middle, siding with one camp as often as the other. There is, however, no reason to believe that. During his nearly twenty years on the federal bench (the D.C. Circuit Court of Appeals), he has been a reliable supporter of expansive government power. His judicial philosophy seems to put him squarely on the “liberal” side of the Court, adding a fifth and deciding vote in many cases.
Far more useful than the “left-right-moderate” jargon we apply to politics is to ask about the extent to which a judge is willing to question the rationales offered by government when it intrudes upon the liberty or property of the citizens. Those who are, we could call “engaged” per the suggestion of Institute for Justice senior attorney Clark Neily in his 2013 book Terms of Engagement . Jurists who, on the other hand, are more inclined to defer to governmental authorities when they argue in favor of whatever they’re doing to individuals, we might call “deferential.”