Up front: my general belief is that ALL presidents are entitled to pick the Cabinet members and judges they want, and that the Senate should usually just rubber stamp the nominees. In a world where Astorian made the rules, both Merrick Garland AND Robert Bork would have been confirmed unanimously. If people turned to me for advice (they don’t, obviously) I’d tell all Senators “Unless the nominee is crooked or unqualified, hold your nose and vote to confirm.” But that hasn’t been the real world in ages.
But back to my main point: when Merrick Garland was first nominated, the media invariably described him as “a moderate” and NEVER as “a liberal.” “Mainstream” media assumed he’d be confirmed easily and acted as if Obama had been magnanimous in appointing a man who’d be so acceptable to Republicans.
Now, Merrick Garland has all the qualifications for the job, no doubt. And as far as I can tell, he’s a fine man and solid citizen. That should be enough, in Astorian’s world, to get him confirmed.
BUT… what made him “moderate”? I can’t see a single issue of any importance on which he’d have voted any differently from RBG or The Wise Latina.
Seriously, what made the media call him a moderate rather than a liberal? Are there really any major issues on which he’d vote with Sam Alito and Clarence Thomas rather than with the liberal bloc? Which ones?
He was nominated by Obama. And he would have replaced Scalia, who was conservative. Thus, moderate.
Granted, Garland wasn’t as liberal as Sotomayor or Kagan, and Obama passed him over twice before because he wasn’t liberal enough. Obama thought he was coming as close as he could tolerate to a moderate, either on the off chance that he could get a moderate confirmed, or just to score political points against the Republicans, but it didn’t work out for him.
I think Garland was perfectly qualified, myself. An outstanding resume for a jurist and a lawyer.
But I think the OP was asking about how it was that he was determined to be a “moderate.”
To illustrate the point, Ruth Bader Ginsburg is highly qualified, and an outstandingly brilliant legal authority, but not a moderate. In my view, anyway.
If Garland is a “moderate” rather than a standard liberal, surely you can name me, say, TWO important issues on which he’d break with Breyer and Kagan to vote with the conservatives.
He rarely gets dissented from. He rarely writes dissents (15 in two decades leading up to his nomination to the Supreme Court). Dissents are the hallmark of more extremist thinking. If you’re writing them a lot of them, it’s because most decisions, even middle-of-the-road ones, are not compatible with your viewpoint (think the famous “Brennan and Marshall, JJ, in dissent”).
He defers to regulatory agencies. See, for example, his vote to uphold the DEA’s classification of marijuana as a Schedule I drug. But he’s not just a rubber stamp for them. And his decisions regarding agency decisions don’t always track “liberal.”
He’s generally pro-prosecution/law enforcement. Numerous examples of this in his decisions/dissents.
I’ll take a run at an example in the crime/law enforcement area:
US v. Powell, 483 F. 3d 836 (DC Cir. 2007).
Here the DC Circuit en banc refused to suppress evidence in a criminal trial, specifically the discovery of a firearm. After seeing two men urinating in an alley, the police officers looked in the car they had been driving and discovered alcohol. They then searched the car and discovered a backpack. An officer opened the backpack and found firearm and ammunition, and arrested Ronald Powell for possession of a firearm.
The issue was the timing. The government claimed this was a permissible search incident to arrest. Police are allowed to search with no warrant when they arrest someone.
The defense said that there had been no arrest. Powell was detained, to be sure, but not in handcuffs and not arrested, so how could the search be incident to an arrest that had not happened?
Garland voted with the majority, joining Judge Ginsburg’s opinion. (No relation to RBG). That opinion reasoned that police may search a suspect whom they have probable cause to arrest if the “formal arrest follow[s] quickly on the heels of the challenged search.” The dissent said that the purpose of the exception to the warrant requirement was twofold: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. Neither of those applied here; the suspect was detained away from the car and could have been placed under arrest at any time. The dissent characterized the majority opinion thusly:
I think it’s very plausible that Breyer, at least, would have joined the dissent in that case. Kagan, probably not.
Istm, that one is a bit of a sticky wicket. It’s more a separation of powers thing which I’m not so sure lines up on a traditional liberal/conservative line. “Deference to regulatory agencies” is deference to the executive branch. Gorsuch and Thomas are actively leary of it while Scalia generally supported Chevron deference.
Yes some were, but the claim was “many Republicans” not all republicans. So the fact that you can find one (there was another quite similar) doesn’t dispute the original statement.
Nope. That was from back in the day; Grassley was against confirming Garland to the DC circuit because (according to him) the extra judge wasn’t needed
It was not the media than named Merrick Garland a moderate, it was Orrin Hatch and the media just got joy in repeating it. As speculations were swirling about who Obama would name as a replacement, Republicans were already saying that the next president should be the one to decide who serves on the supreme court. This was controversial and the media was interviewing Republicans left and right (well, actually only right… heh) about this stance. Orrin Hatch named Garland in the quote above and within 24-48 hours Obama nominated him in what many saw as a direct response to the interview.
They didn’t wait for speculations about Obama’s nomination. They didn’t even wait for the Scalia to reach room temperature. Otherwise, correct. Republicans made Garland a moderate, not the media.