Merrick Garland, Moderate Activist, Is Too Activist for our Constitution

Merrick Garland, Moderate Activist, Is Too Activist for Constitution

The question isn’t one of degree.
Merrick Garland, the appellate judge whom President Barack Obama has nominated to the Supreme Court, is a “moderate.”

Of that we are assured by all the best people writing in all the usual venues: USA Today, Politico, the Los Angeles Times. A moderate what?

The question may be in this instance a purely intellectual one. Garland could be the second coming of Solomon, and Mitch McConnell and his Republican colleagues would be looking to leave him locked up in the Senate basement until after the presidential elections, after which President Cruz might choose a better candidate; President Clinton, a much worse one (which would probably result in the lame-duck Senate working to confirm Garland); or President Trump, the devil knows what.
The immediate case against advancing Garland’s nomination has nothing to do with Garland and everything to do with the Senate rousing itself to do its constitutional duty and check President Obama’s executive imperialism with such tools as it has at its disposal.
Carrie Severino and others have argued here that Garland is no judicial moderate, that he is a quiet left-wing activist well disposed to political efforts to undermine the Second Amendment. On that question, I defer judgment to our experts.
But there is another question we ought to consider, which is whether there is any such thing as a judicial moderate. If the expanse of your political imagination is roughly the dimensions of the New York Times, that may seem an absurd question. We hear all the time about “moderates” and “extremists” in the nation’s courts.
A great deal of huffing and puffing, which no doubt dishevels the pages of a nearby copy of The Economist, insists upon the virtue and the needfulness of such moderation. But the fundamental question that we must ask about Supreme Court nominees — all nominees to all benches, in fact — is not one of degree, which is the sort of question that the criterion of “moderateness” would apply.
Instead, it is an either/or question: Does the law say what it means and mean what it says, or are judges empowered to graft private notions of justice from their own souls onto the law and the Constitution?

Antonin Scalia understood that this was a yes-or-no proposition, and they hated him for it.

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