The Senate Must Deny Obama’s Bid to Transform the Supreme Court

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.

.. 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 any Obama 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.

.. 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.

Lessons for the Supreme Court from the Jedi Council

The stakes, everyone agrees, couldn’t be higher. If a single vote falls one way or another, as Senator Ted Cruz points out, decisions such as Heller v. D.C., and with it the reading of the Second Amendment—does it give private individuals a right to own a gun, or reserve that right only to members of a militia?—could be reversed.

Yet, if a textual interpretation can be so altered by a single vote as to mean exactly the opposite of what it had officially been thought to mean, then surely it seems less like a disinterested interpretation than like a passionately held opinion trying to pass as a disinterested interpretation. If four English professors, readers of “The Pickwick Papers,” held that Mr. Pickwick was meant to be the embodiment of intrinsic evil, and four others that he was the embodiment of bourgeois benevolence, we would not say that the solution was to add a ninth English professor. We would say that they were making incompatible readings of the same text because of strong and irreconcilable differences in values and beliefs and expectations.

.. that the Court is a purely political institution, and then that some of its members (the ones we agree with) are disinterested scholars pursuing a higher philosophy of law. The late Justice Scalia’s pretense was that “originalism,” a doctrine of tracking pure intention alone, could absolve judges from ideology—but, of course, as has been pointed out countless times, the original intentions he found almost always conformed precisely to the prejudices and passion of a right-wing Catholic Republican of the twenty-first century.

.. We don’t believe that intellectuals are mere interpreters. We haven’t for a long time. In a post-scientific age, we generally accept that reliable conclusions are made from evidence and experience, not from torturing old texts. Yet we can’t, emotionally, entirely accept this. We need authority for fear of anarchy. So we rely on the Constitution, or pretend to

Scalia Appointment as High Stakes as Clarence Thomas

The last nomination with the ideological stakes so high was in 1991, when Thurgood Marshall retired, by some measures the most liberal justice in modern history. He was replaced by Justice Clarence Thomas, the most conservative by those same measures, after a brutal confirmation process.

“The importance of the change in the court’s jurisprudence that is directly attributable to the choice of Clarence Thomas to fill the vacancy created by Thurgood’s retirement cannot be overstated,” Justice John Paul Stevens, who retired in 2010, wrote in a memoir published in 2011.