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The Washington Post’s editorial board criticized Senate Majority Leader Mitch McConnell’s (R-KY) “patently ridiculous” claim that Supreme Court nominee Merrick Garland is ideologically extreme.
Since Garland’s nomination in March, groups like the Judicial Crisis Network, the National Federation of Independent Business and the National Rifle Association have made numerous false and misleading claims about Garland’s record to portray him as ideologically extreme. In fact, conservatives have praised Garland for years and multiple prominent conservative lawyers have announced their support for Garland’s nomination.
In a June 5 editorial, the editorial board slammed McConnell’s “patently ridiculous” claim after he said on MSNBC’s Morning Joe that “from a conservative point of view, I don’t think you could have a worse nominee than Merrick Garland.” The board wrote that it is “absurd” to call Garland a “worst-case scenario for Republicans,” noting, “Fellow judges from across the ideological spectrum [have] effusively praise[d] Mr. Garland” and that Garland’s record as a judge has “been careful and evenhanded.” From the June 5 piece:
Senate Majority Leader Mitch McConnell (R-Ky.) continues to insist that the GOP blockade of Judge Merrick Garland, President Obama’s nominee to replace Scalia, is “about a principle, not a person.” The crucial principle that apparently justifies hobbling the Supreme Court is the newly invented notion that the president should be able to fill court vacancies during only three-quarters of his elected term.
Mr. McConnell’s discovery of this principle has been as obvious a case of situational ethics as has ever been seen in Washington. Indeed, from the beginning, it was clear Republicans had more than proper procedure on their minds. “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” Mr. McConnell warned in March.
Now Mr. McConnell has gone a step further, making his opposition not simply cynical but patently ridiculous. In interviews last week, Mr. McConnell argued that Mr. Garland is ideologically extreme. “I don’t think you could have a worse — from a conservative point of view, I don’t think you could have a worse nominee than Merrick Garland,” he said on MSNBC’s “Morning Joe.” “I would say, he’s a well-qualified, very liberal judge,” he told NPR.
It is absurd to claim that Mr. Garland, a nominee about whom many liberal groups are not excited, a judge whom Sen. Orrin Hatch (R-Utah) once called a “consensus nominee,” is the worst-case scenario for Republicans. Fellow judges from across the ideological spectrum effusively praise Mr. Garland. His work on the country’s second-most prominent court, the U.S. Court of Appeals for the District of Columbia Circuit, has been careful and evenhanded. Mr. McConnell’s claims do not pass the laugh test — unless by “worst,” he means “most-qualified” and therefore most difficult plausibly to reject.
Mr. McConnell’s admission that Mr. Garland is “well-qualified” should end the discussion. The president gets to nominate; the Senate gets to object in extraordinary circumstances, but has an obligation to confirm if nominees are, as in this case, obviously qualified and within the mainstream of judicial thinking. No other arrangement can keep the system working. But the majority leader obviously has other considerations in mind.
Republicans’ stated plan to block any nomination to the Supreme Court by President Obama is “historically unprecedented,” according to an analysis of every Supreme Court nomination. The analysis notes that “the Senate has only refused to consider a President’s Supreme Court nominations in the highly unusual circumstance where the nominating President’s status as the most recently elected President has been in doubt.”
According to the analysis, authored by University of Illinois College of Law professors Robin Bradley Kar and Jason Mazzone, Senate Republicans’ “major departure from more than two centuries of historical tradition” poses the risk that “no future Supreme Court Justice will be appointable unless the President and the Senate are of the same political party.”
As the authors explained, circumstances similar to President Obama’s -- where an elected president is presented with a Supreme Court vacancy prior to the election of his successor -- have occurred 103 times in U.S. history. In each of those instances, the Senate voted to confirm a judge nominated by that president to fill the vacancy.
Kar and Mazzone warn that Republicans’ insistence on rejecting this longstanding historical precedent creates “historic, pragmatic, and constitutional risks” and urge that “Senate Republican leaders should reconsider their current plan” (internal citations removed, emphasis original):
In particular, history suggests that while there may be no general duty on the part of the Senate to provide advice and consent with respect to every nomination to a federal office that a President may make, the Supreme Court presents a special case. As we show, the Senate has only refused to consider a President’s Supreme Court nominations in the highly unusual circumstance where the nominating President’s status as the most recently elected President has been in doubt. Once this fact is recognized, it will become clear that the Republican plan is historically unprecedented and entails more extensive pragmatic and constitutional risks than have thus far been recognized. These risks may well outweigh the originally perceived benefits of the plan, even to Senate Republicans.
Part I therefore begins with a close look at the entire relevant history. By examining every Supreme Court appointment process in U.S. history, we uncover a principled but underappreciated distinction between cases where the Senate has provided advice and consent on particular Supreme Court nominees—by considering them (and either confirming, rejecting, or resisting them on the merits using a wide array of senatorial procedures)—and cases where the Senate has sought deliberately to transfer a sitting President’s complete Supreme Court appointment powers to a successor. We show that tactics of the latter kind have always been limited to the unusual circumstance where there were contemporaneous questions concerning the status of the nominating President as the most recently elected President. More specifically, all such cases involved a President who either (a) attained office by succession rather than election or (b) began the nomination process after the election of his successor. Neither circumstance applies to President Obama’s nomination of Judge Garland. Moreover, bracketing these highly unusual circumstances, we show that there have been 103 prior cases in which—as in the case of Obama’s nomination of Garland -- an elected President nominated someone to fill an actual Supreme Court vacancy and began the nomination process prior to the election of a successor. In all 103 cases, which go back all the way to the earliest days of the Republic, the sitting President was able to both nominate and appoint a replacement Justice -- by and with the advice and consent of the Senate, and regardless of the senatorial rules and procedures in place. Hence, in none of the 103 cases that most closely resemble the current controversy has a sitting President been unable to fill an existing Supreme Court vacancy with some nominee.
The historical rule that best accounts for the entire history of Supreme Court appointments is thus the following: Although the Senate has the constitutional power to provide advice and consent on particular Supreme Court nominees (and hence to reject or resist individual nominees on the merits), the Senate may only deliberately transfer one President’s Supreme Court appointment powers to an unknown successor -- as Senate Republicans are currently attempting to do with their plan -- if there are contemporaneous questions about the status of the nominating President as the most recently elected President. There are no such credible questions about President Obama’s status. Hence, while Senate Republicans have framed their opposition to the nomination of Judge Garland as hewing to historical practices, their plan in fact presents a major departure from more than two centuries of historical tradition.
The logical terminus of the current Republican plan may also be that no future Supreme Court Justice will be appointable unless the President and the Senate are of the same political party. Such a result can only lead to a more -- rather than less -- politicized appointment process and, ultimately, to a more politicized Court.
In order to avoid the historic, pragmatic, and constitutional risks we set forth, Senate Republican leaders should reconsider their current plan. They should not breach a tradition that goes back more than two centuries and began in the earliest days of the Republic. They should instead do what has always been done in similar circumstances. They should proceed to full Senate consideration of Judge Garland or any other nominee that President Obama puts forth in a timely manner.
The NRA complained that media outlets are ignoring their false attacks on President Obama’s Supreme Court nominee Merrick Garland in an article that offered more falsehoods.
In a May 24 article at the NRA’s online magazine America's 1st Freedom, Chris Cox, the NRA’s top lobbyist who also runs the group’s political efforts, lashed out at the New York Times editorial board for dismissing the NRA’s false claims about Garland’s record. Cox’s article, titled “Media Ignore Facts In Dismissing NRA’s Concerns About Supreme Court Nominee,” criticized the Times for concluding that there is “no fact-based reason” for the NRA to claim Garland is hostile to the Second Amendment.
In complaining about “the most extreme case of media bias in recent memory,” Cox accused the Times of “spouting assumptions without checking facts” and “journalistic malfeasance to insist that the NRA has no basis for opposing him.”
To make the case that Garland’s record does indicate an anti-gun bias, Cox went on to cite Garland’s role in the 2007 decision Parker v. District of Columbia which came before the U.S. Court of Appeals for the D.C. Circuit where Garland is now chief judge.
But Garland’s role in this decision was minimal, and countless legal experts have repeatedly refuted claims that it indicates any particular views on the Second Amendment.
Here are the facts about the Parker case.
In a 2-1 panel decision -- in which then-circuit judge Garland did not participate -- the D.C. Circuit reversed a lower court's decision upholding D.C.’s handgun ban, finding that the law violated the Second Amendment.
Following the ruling, Garland was one of four judges -- including George H.W. Bush appointee Judge Raymond Randolph -- who voted whether to have the entire D.C. Circuit rehear the case in a procedural move known as an en banc rehearing. A majority of D.C. Circuit judges voted not to rehear the case, and it moved on to the Supreme Court, where it became the landmark Second Amendment decision District of Columbia v. Heller.
In the NRA article, Cox falsely alleged that Garland’s vote to rehear the case means that he would have reversed the decision striking down D.C.’s handgun ban, writing, “the fact is, judges do not vote to rehear decisions with which they agree. If a judge thinks a panel’s opinion was wrong, he or she votes to have the full court rehear it. If a judge thinks a panel’s opinion was correct, he or she lets it stand. Plain and simple.”
According to the Federal Rules of Appellate Procedure, Cox is wrong to claim that a vote to rehear a case indicates that a judge agrees or disagrees with the court’s initial ruling.
As Rule 35 explains, en banc rehearings “ordinarily will not be ordered unless” there is disagreement among courts about the correct outcome of the case or if “the proceeding involves a question of exceptional importance”:
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.
According to PolitiFact, both conditions of the en banc rule were satisfied by the Parker case. Indeed, the case came at a time when there was disagreement among the courts about whether the Second Amendment conferred a “collective” or “individual” right.
The case was also exceptionally important -- the Supreme Court at the time had not made a significant ruling on the meaning of the Second Amendment since 1939 in United States v. Miller. In fact, the question of whether handgun bans were permissible under the Second Amendment was so important that the NRA spent years crafting a case to challenge the D.C.’s handgun ban. (The NRA’s case, Seegars v. Gonzalez was poorly crafted, and the NRA later joined the Parker efforts.)
Legal experts have refuted the type of claim being made by the NRA about Garland's vote to rehear Parker. As Andrew Bradt, assistant professor of law at the University of California, Berkeley, School of Law explained, “A vote to rehear a case can be based only on the importance of the issue and the need to have the full court address it or it can be because the issue is a complicated and confusing one that demands the clarity provided by a discussion of the full court of appeals. It doesn't at all indicate a pre-judgement that the panel's decision was wrong.”
The claim that Garland’s en banc vote in Parker means that he is anti-gun is a smear was first developed by the Judicial Crisis Network (JCN), a discredited right-wing group that is spending millions to oppose Garland's nomination, and now is repeated by the NRA. Numerous legal experts, however, have already debunked the claim that an en banc vote is representative of how a judge would rule on the merits if the case were reheard. Plain and simple.
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Media are decrying Kansas Republican Sen. Pat Roberts’ obstruction of Eric Fanning’s nomination to be Army Secretary as “unreasonable intransigence” and “part of larger inaction” by Congress to undermine President Obama’s federal nominations.
Lithwick Explains How Dearth Of Garland Coverage Contributes To False Perception That Voters Don’t Care About The Nomination
Slate’s reporter on courts and the law, Dahlia Lithwick, highlights how Republican obstruction of Merrick Garland’s nomination to the Supreme Court and an election cycle filled with Donald Trump’s insults and hateful rhetoric have harmed coverage of the stalled confirmation process, even as it persists into “unprecedented” territory and affects the court’s ability to function effectively. Lithwick notes that despite reporters’ impressions that voters don’t care about Garland’s nomination, a recent poll shows nearly two-thirds of voters favor nomination hearings for Garland. For reporters looking for a “potential story,” Lithwick points to the impact ongoing obstructionism has had on “close Senate races,” the “millions already having been poured in” to the anti-Garland blockade by conservative groups, and confusion within the Republican Party on anti-Garland strategy. She concludes by acknowledging that “paper answers to questionnaires will never compete with stories about Donald Trump’s teeny tiny hands,” but implores media to “move forward” and find a way to cover the “brick wall of inaction” as the “nonconfirmation season” continues.
From the May 10 article (emphasis added):
The only experience more absurd these days than trying to actually be Merrick Garland —dutifully attending courtesy meetings that lack any meaningful courtesy and painfully enduring what is surely the most insulting nonconfirmation season in American history—is trying, as a journalist, to cover Merrick Garland and his stalled nomination.
Because there is virtually nothing happening each day, there is virtually nothing to write about each day. And because we don’t write about it each day, voters continue not to know that it is going on each day. And since so many Americans don’t know about what isn’t happening to the empty seat at the Supreme Court each day, that all adds inexorably to the vague general impression that they must not care about it. And since they don’t seem to care about it, it hardly makes sense to write about it. Right?
If we can all now agree that something isn’t news if it doesn’t insult Muslims or berate women, then I guess Merrick Garland isn’t news. And because Garland faces a brick wall of inaction, the handful of actions he does take seem completely futile.
The result is that it’s been 55 days since the president announced Garland’s nomination, and the judge is now routinely banished to half a column on page A-14. This, despite the fact that the court is clearly operating in all sorts of diminished ways as a result of what will likely be a more-than-yearlong vacancy. As Washington Post reporter Robert Barnes recently noted, the court has accepted fewer cases for next term, and there is a question about how the big important issues now facing the court can be resolved in any definitive fashion this year.
This is the lay of the land, and we in the media had best figure out how we are going to move forward with it: There is nothing interesting about nothing happening to a 63-year-old judge. Moreover, the court is, by design, secretive and built of paper, and stories about Merrick Garland’s paper answers to questionnaires will never compete with stories about Donald Trump’s teeny tiny hands. Even the fact that “everybody yawns” when told about a Supreme Court vacancy being blocked in an unprecedented manner in U.S. history isn’t a story. But that doesn’t mean it shouldn’t be.
Conservative lawyers are warning Republicans against supporting presumptive GOP nominee Donald Trump because of potential vacancies on the Supreme Court during the next presidency, saying that he would nominate “cronies,” is incapable of making “sound judicial selections,” and “hasn’t given a moment’s thought to the Constitution.”
Editors of the conservative RedState blog are warning that since Donald Trump is now the GOP’s presumptive nominee for president, Senate Republicans should move to confirm Supreme Court nominee Merrick Garland “before it is too late.”
Redstate Managing Editor Leon H. Wolf, who has said that he will never vote for Trump, wrote in a May 4 post that Garland “is not a great choice, but is not a terrible one, either.” He continued that Senate Republicans should thus confirm Garland rather than allowing Hillary Clinton to name her own nominee after what he depicted as Trump's almost certain defeat in November. Fellow editors Ben Howe and Dan McLaughlin have also expressed support for the position. Wolf concluded:
In fact, if I were the Republicans, my main concern right now would be that Barack Obama would withdraw Garland’s nomination today. The fact that Merrick Garland still exists as an option right now is a gift that should not be squandered.
The calculus has changed – confirm Merrick Garland before it is too late.
USA Today gave a representative of extremist gun organization Gun Owners of America (GOA) a platform to smear Supreme Court nominee Merrick Garland. The group wrote a column distorting the facts on several U.S. Court of Appeals for the D.C. Circuit opinions to claim Garland “had 4 chances to vote against gun rights, and he took them all.”
GOA is a far-right organization with past ties to anti-Semites and white supremacist groups and a leader, Larry Pratt, who has repeatedly suggested that politicians should fear being shot by a GOA supporter if they pass laws regulating firearms.
In a May 1 column at USAToday.com, GOA general counsel Michael Hammond distorted Garland’s involvement in four cases decided before the D.C. Circuit, where Garland sits as chief judge, to claim Garland is “anti-gun.”
In one case Hammond cited, Garland did not participate in the ruling, but rather took part in a vote to decide whether the entire D.C. Circuit should rehear the case, which would require the full panel of judges to consider it. According to legal experts, a judge’s vote to rehear or not rehear a case is not indicative of what the judge thinks the outcome of the case should be. Two of the cases Hammond cited were not actually decided on Second Amendment grounds and cannot be characterized as showing bias for or against gun rights. And in the fourth case he cited, Garland did not participate in the ruling and the case was not decided on Second Amendment grounds.
Hammond first attacked Garland for his participation in a vote related to Parker v. District of Columbia, a 2007 challenge to Washington, D.C.’s handgun ban. In a 2-1 panel decision -- which Garland did not participate in -- the D.C. Circuit reversed a lower court's decision upholding the ban, finding that D.C.'s law violated the Second Amendment.
Following the ruling, Garland was one of four judges, including George H.W. Bush appointee Judge Raymond Randolph, to vote to have the entire D.C. Circuit rehear the case en banc. A majority of D.C. Circuit judges voted not to rehear the case, and it moved on to the Supreme Court, where it became the landmark Second Amendment decision District of Columbia v. Heller.
The claim that Garland’s en banc vote in Parker means that he is "anti-gun" is a smear developed by the Judicial Crisis Network (JCN), a discredited right-wing group that is spending millions to oppose Garland's nomination. Numerous legal experts, however, have debunked the claim that an en banc vote is representative of how a judge would rule on the merits if the case were reheard.
According to the Federal Rules of Appellate Procedure, an en banc rehearing “ordinarily will not be ordered unless” a full panel’s “consideration is necessary to secure or maintain uniformity of the court's decisions; or the proceeding involves a question of exceptional importance.” As PolitiFact noted, the Parker case satisfied both of those conditions.
Hammond also attacked Garland for his involvement in a case preceding Parker that unsuccessfully challenged D.C.'s handgun ban. As in Parker, Garland did not participate in the decision in Seegars v. Gonzalez, but rather participated in a vote on whether to rehear the case en banc.
The Seegars case was brought by a group of District of Columbia residents who argued that D.C.’s handgun ban and trigger lock laws violated their Second Amendment rights. In 2005, the D.C. Circuit ruled against the residents in an opinion authored by Reagan appointee Judge Stephen F. Williams.
While the D.C. residents made a Second Amendment argument against D.C.’s gun law, the court never ruled on the merits of this argument. Instead, the court dismissed the case on procedural grounds, with the majority opinion finding that “under controlling circuit precedent no plaintiff has standing” to challenge D.C.’s handgun ban and trigger lock laws. The vote to rehear the case failed 7-3, with Garland voting against rehearing alongside D.C. Circuit judges appointed by Democrats and Republicans. Then-D.C. Circuit Chief Judge Douglas Ginsburg, a Reagan appointee, filed a concurrence in the denial to rehear the case. As in Parker, Garland’s vote does not indicate how he would have ruled on the merits of the case.
Hammond also cited Garland’s joining of the 2000 decision National Rifle Association v. Reno as supposed evidence of “anti-gun” bias. As with his citation of the Parker case, Hammond’s attacks concerning NRA v. Reno originate from debunked talking points pushed by JCN.
In Reno, the NRA claimed that the way the FBI's National Instant Criminal Background Check System (NICS) for gun purchases temporarily retained data on gun owners violated a federal prohibition on creating a registry of gun owners.
On appeal, the NRA lost the decision, 2-1, with Garland joining Judge David S. Tatel's majority opinion, which ruled: “Finding nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes, we affirm the district court's dismissal of the complaint.”
As with the Seegars case, the ruling was not decided on Second Amendment grounds. Rather, the case was one of statutory construction and interpretation, assessing whether the NICS system of temporary record retention was permissible under the language of the Brady Act and the Department of Justice’s interpretation of that act.
Furthermore, no court accepted the NRA’s argument that the NICS system was tantamount to a gun registry. The NRA lost the case at the federal district court level, then again at the D.C. Circuit in the ruling Garland joined, before the then-conservative-leaning Supreme Court finally denied a request by the NRA to hear the case. In fact, Bush Attorney General John Ashcroft opposed the NRA’s request that the Supreme Court hear the case, writing that the D.C. Circuit decision Garland joined was “correct.”
The last example Hammond cited as supposed evidence of Garland’s “anti-gun” bias was the 2012 decision United States v. Burwell, where the D.C. Circuit reheard a case involving a 30-year mandatory minimum sentence given to a man convicted of possessing a machine gun while committing a "crime of violence."
At issue was whether the criminal defendant in that case, who had brandished a fully automatic AK-47 assault rifle during a series of bank robberies, knew that the firearm was capable of fully automatic fire (the gun in question was capable of both automatic and semi-automatic fire).
A 2012 decision before the entire D.C. Circuit – after members of the court had voted to rehear the case en banc – affirmed the D.C. Circuit’s original decision in a majority opinion that upheld the defendant’s conviction.
Garland joined the majority opinion authored by Judge Janice Rogers Brown, a George W. Bush appointee.
Like with the Seegars and Reno cases, it is misleading to claim that the opinion here offers an indication of a judge’s view on gun rights because the case was not decided on Second Amendment grounds. Instead, the case was decided on statutory grounds: whether the sentencing minimum law required the prosecution to prove that the defendant knew whether the firearm used in a crime of violence was fully automatic.
The ruling affirming the defendant’s conviction largely relied upon prior precedent within the D.C. Circuit -- a 1992 case called United States v. Harris. In that case, a panel of judges composed of Carter appointee Ruth Bader Ginsburg, George H.W. Bush appointee Clarence Thomas, and Reagan appointee Laurence H. Silberman issued a per curiam opinion that reached the same legal conclusion as the opinion Garland joined in the Burwell case.
The Washington Post credulously called the efforts by the discredited conservative group Judicial Crisis Network (JCN) to prevent the confirmation of Supreme Court nominee Judge Merrick Garland "remarkably successful." But polls show the general public is increasingly at odds with JCN's position. Indeed, just last week the Post reported that the results of a new poll was evidence that "Democrats are winning the message war over Garland." The Post promoted the notion of JCN's success in an interview with chief counsel Carrie Severino, who was given a platform to rehash debunked smears about Garland's judicial record on guns and government regulations.
Trump’s Support For State-Sponsored Anti-LGBT Laws Does Not Make Him LGBT Friendly
In a segment discussing North Carolina's discriminatory anti-LGBT "bathroom bill" legislation, NBC's Hallie Jackson claimed that Donald Trump "is considered one of the more LGBT-friendly Republican candidates." Jackson’s misleading description of Trump as LGBT friendly comes as the Republican front-runner attempts to re-brand himself as a more moderate candidate heading into the general election and ignores Trump’s long-standing position as an opponent of marriage equality.
While Jackson described Trump as “one of the more LGBT friendly Republican candidates,” a closer look finds his stance in line with supporters of the law. During an April 21 interview with Fox’s Sean Hannity, Trump said "local communities and states" should be able pass discriminatory legislation barring transgender people from using a bathroom associated with the gender they identify with. Trump’s stance that states should be allowed to pass these discriminatory laws is in line with North Carolina’s passing of the state-sponsored anti-LGBT law:
HALLIE JACKSON: Ted Cruz, in a new online video, taking aim at Donald Trump's criticism of a transgender bathroom ban in North Carolina.
TED CRUZ: This is not a reasonable debate over public policy. This is political correctness run amok.
JACKSON: Cruz, using Trump's comments to try to boost his own conservative credentials, while hitting his rivals with a new online polling showing 64 percent of Republicans support the ban. But some of Trump's backers aren't bothered by it.
JACKSON: A top Trump aide, dismissing Cruz's criticism, telling NBC News the senator is simply trying to stay relevant. Trump himself, not backing down.
DONALD TRUMP: Local communities and states should make the decision. And I feel very strongly about that.
JACKSON: While Trump is considered one of the more LGBT-friendly Republican candidates, he hasn't talked much about those issues on the campaign trail. Not a typical part of his stump speech, and not mentioned tonight at his rally here in Delaware.
Jackson's NBC Nightly News report ignores Trump's history of bigoted and extreme positions on LGBT issues, including his support for the anti-LGBT "First Amendment Defense Act," Trump's promise to "strongly consider" appointing Supreme Court justices to overturn its recent ruling in support of marriage equality, and his previous support for Kim Davis, a Kentucky County clerk who refused to issue marriage licenses to same-sex couples.
Furthermore, the NBC segment plays into comments made by Trump’s new campaign manager, Paul Manafort. During an April 21 meeting of Republican leaders, Manafort attempted to assure those assembled that Trump’s outrageous rhetoric was the candidate simply “projecting an image” and that “the image is going to change.”
Following the release of a misleading “scorecard” from the Koch-backed National Federation of Independent Business (NFIB) -- which dishonestly represented Supreme Court nominee Judge Merrick Garland’s rulings on the D.C. Circuit as too deferential to government agencies -- the Alliance for Justice explained that Justice Antonin Scalia took “precisely the same view” as a dissent Garland joined. The dissent was related to an EPA case that the NFIB cited to criticize the nominee.
The “judicial scorecard” released by NFIB on April 12 omitted important context to smear Garland as anti-business and overly
Contacted by Media Matters about NFIB’s “scorecard” claiming that Garland's judicial record indicates he is anti-business, top legal experts derided the organization’s claims as “silly” and “nonsense.” While purporting to represent the interests of small businesses, NFIB has in fact campaigned against environmental, labor and health care policies that most small businesses support.
An April 21 blog post by the Alliance for Justice’s director of justice programs, Kyle Barry, further demonstrated that NFIB’s attacks against Garland’s rulings lack merit. Barry explained that when American Trucking Association v. EPA -- one of the cases cited in NFIB's scorecard -- reached the Supreme Court, Justice Scalia's maj
As Barry explained, Garland's position in the case “was dictated not by ideology or bias toward special interests, but by adherence to precedent that he swore a judicial oath to uphold”:
Among the cases NFIB cites is American Trucking Association v. EPA, which held that the Clean Air Act’s requirement that the Environmental Protection Agency set air quality standards violates the “nondelegation” doctrine—in other words, that Congress impermissibly delegated legislative power to the EPA. Judge Garland didn’t participate in the panel decision, but he did vote to rehear the case with the full D.C. Circuit, and he did join Judge David Tatel’s dissent when rehearing was denied.
Based on Judge Tatel’s dissent, NFIB concluded that Judge Garland “would have voted for the EPA,” and in this instance that’s totally fair. (This situation is very different from when a judge votes on a petition for review but doesn’t write or join any opinions, in which case the judge’s views are unknown.) Judge Tatel made clear that the Clean Air Act is in line with years of binding Supreme Court precedent. He wrote that the statute limits EPA discretion in ways “far more specific than the sweeping delegations consistently upheld by the Supreme Court for more than sixty years,” and complained that “[n]ot only did the panel depart from a half century of Supreme Court separation-of-powers jurisprudence,” it “stripped the [EPA] of much of its ability to implement the Clean Air Act, this nation’s primary means of protecting the safety of the air breathed by hundreds of millions of people.”
The problem for NFIB—and all those who wish to portray Judge Garland as a lawless anti-business radical—is that, on appeal in the Supreme Court, Justice Scalia wrote a unanimous opinion taking precisely the same view. Overturning the D.C. Circuit panel, Justice Scalia wrote that the Clean Air Act “is in fact well within the outer limits of our nondelegation precedents.” He explained that “a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action,” and that the Supreme Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”
In other words, Judge Garland’s position was dictated not by ideology or bias toward special interests, but by adherence to precedent that he swore a judicial oath to uphold.
Conservative claims that Supreme Court nominee Merrick Garland’s rulings prove he is anti-business are "silly" "nonsense," according to administrative law experts who spoke with Media Matters.
Earlier this month, the Koch-backed National Federation of Independent Business (NFIB) released a “scorecard” of Garland’s rulings as a judge on the D.C. Circuit. The group claimed its scorecard proved Garland “is quantifiably biased in favor of regulatory agencies and against private sector businesses” because he often ruled in favor of several government agencies.
But as Media Matters previously explained, the scorecard is misleading and not evidence that the nominee is somehow outside of the legal mainstream. In fact, many of the decisions NFIB highlighted for criticism were rulings in which Garland was joined by Republican-appointed judges, and the conservative group’s attempt to provoke outrage over Garland’s record ignores crucial legal context.
Top legal experts who spoke with Media Matters pointed out that in most federal appeals cases involving governmental agencies, the court sides with the agency under the “Chevron Deference” doctrine, which “raised the issue of how courts should treat agency interpretations of statutes that mandated” agency action, where the “Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable.”
“If you look at cases involving direct regulation by government agencies, his pattern of voting in those cases is entirely standard,” said Laurence Tribe, a professor at Harvard Law School. “It’s the common approach because ever since the Chevron decision the idea has been that Congress can’t always address all of the details that arise in the regulatory state so they give a lot of leeway to expert agencies in deciding how best to carry out the underlying purpose that Congress had in enacting statutes. Therefore, the idea is when agencies resolve those ambiguities in ways that are at least rational and don’t cross any boundaries that are laid down, federal judges usually defer.”
Joseph Landau, associate professor at Fordham Law School, agreed.
“The Supreme Court has said that if the statute is unclear, courts should defer to the agency’s interpretation of the federal law as long as the agency’s interpretation of the statute is reasonable,” he said. “If the statute is unclear, and the agency is interpreting the statute, courts have generally held that the agency gets deference. There are exceptions, but deference is the presumption.”
Jon Michaels, a UCLA Law School professor and a former clerk for the Second Circuit Court of Appeals, pointed out that the man Garland is seeking to replace, Justice Antonin Scalia, was a strong supporter of the "Chevron Deference" doctrine.
He also said the D.C. Circuit Court usually rules in favor of the government agencies because it cannot turn down cases and must review even the most unlikely claims.
“The court is limited in what it can overturn,” Michaels added. “The court is not supposed to substitute its preference on questions of an agency’s interpretation of law, fact or policy.”
William H. Simon, Arthur Levitt Professor of Law at Columbia Law School, called the NFIB attack “silly.”
“It's silly to conclude that he is 'biased,'” Simon said. “The law says judges are supposed to defer to the agencies on many issues. A reluctance to overrule the other branches is a defining characteristic of a judicial 'moderate', which is what many in both parties say they are looking for.”
Osamudia James, a law professor at the University of Miami School of Law, said, “When Judge Garland or any judge comes in and says they side with the agency, they are saying that based on the statute that Congress set up, what the agency is doing is reasonable.”
She also cited that many Republican-appointed judges agreed with Garland. “That is an interesting part of this to see who sided with him,” she added. “Other Republican judges are in agreement with him. That undercuts attacks that Garland is excessively pro-regulatory.”
For Daniel Selmi, professor of law at Loyola Law School in Los Angeles, the criticism of Garland is “nonsense.”
“The court reviews what the agency has done based on the administrative record and in doing it, it exercises the standard of review,” Selmi explained. “Which is favorably inclined toward the public agency. They win a majority of the cases. That wouldn’t be abnormal and it wouldn’t tell you anything about bias, it would tell you he is following the law.”
Joseph A. Grundfest, a law professor at the Stanford Law School, added that Garland’s opinions are “entirely unremarkable and reflect no bias either for or against regulatory agencies or private sector entities.”
The National Federation of Independent Business (NFIB) -- a Koch-backed front group that is opposing the nomination of Merrick Garland to the Supreme Court -- released a misleading “scorecard” on Garland’s rulings as a judge on the D.C. Circuit, claiming that Garland is not “moderate” because he supposedly sides too often with federal agencies to the detriment of business interests.
But what NFIB fails to mention in its “scorecard” is that many of the decisions involving federal agencies that NFIB has selected for criticism -- namely the Environmental Protection Agency (EPA), Department of Labor (DoL), and National Labor Relations Board (NLRB) -- were unanimous rulings where Garland was often joined by fellow D.C. Circuit judges appointed by Republicans.
While claiming to speak for small businesses, NFIB is actually a front group that has received millions of dollars from the Koch brothers network and other large corporate interests, and its opposition to Garland is part of a campaign against environmental, labor, and healthcare policies that most small businesses support.
On April 12, NFIB released a “judicial scorecard” purporting to analyze Garland’s career as a judge on the D.C. Circuit. The group promoted its “scorecard” with a press release that asserted Garland’s judicial record indicates he “would overwhelmingly rule in favor of the government, unions, and environmental groups at the expense of small businesses.” According to an NFIB official quoted in the press release, “When you look at Judge Garland’s record on the bench, it is absolutely impossible to conclude that he is anywhere near a moderate."
But NFIB’s attempt to scandalize Garland’s record, which is widely viewed as moderate, dishonestly omits important context.
According to a Media Matters analysis of the 35 cases cited by NFIB concerning Garland’s judicial opinions on the EPA, DoL, and the NLRB -- issues highlighted as the most important in NFIB’s press release and classified as “wins” for the government by the NFIB -- judges appointed by Republicans were on the same side as Garland in 28 out of 35 -- or 80 percent -- of the cases.
In fact, in 17 of the 35 EPA, DoL, and NLRB cases NFIB complains about in its scorecard, Garland wrote the majority opinion for three-judge panels that were composed of him and two judges appointed by Republicans. In only one of the 35 cases did Garland write a majority opinion for a panel composed entirely of judges appointed by Democrats.
NFIB’s attempt to scandalize Garland’s judicial opinions for siding with government agencies more often than not also ignores the longstanding Chevron Deference doctrine, which “raised the issue of how courts should treat agency interpretations of statutes that mandated” agency action, where the “Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable” -- meaning that there is nothing unusual about agencies often prevailing against challenges to their interpretation of law.
Below, Media Matters provides the context to the cases NFIB attempts to scandalize with its scorecard, demonstrating how a strong majority of the EPA, DoL, and NLRB cases NFIB cites to claim Garland is not “moderate” involved Garland’s agreement with Republican appointee judges:
The NFIB scorecard suggests that Garland has been overly deferential to the EPA by claiming that the agency “wins 94% of cases” before Garland, citing eight EPA “wins” versus one “split decision.”
The scorecard does not mention that in six of the EPA’s “wins,” Garland was in agreement with at least one Republican-appointed
The NFIB scorecard includes the 1999 decision American Trucking Ass'n v. EPA. Garland did not actually participate in the ruling in this decision, so it does not merit inclusion in NFIB’s scorecard. Instead, Garland later joined several judges in voting in favor of rehearing the case en banc before the entire D.C. Circuit. Legal scholars have said a vote to rehear a case en banc is not a ruling on the merits of the case, and as a matter of law, does not signify a “win” for the EPA, although the NFIB scorecard baselessly claims that “Garland would have ruled for EPA.”
The scorecard also includes the 2002 decision American Corn Growers Ass'n v. EPA. Garland issued an opinion concurring and dissenting in part with the majority opinion, which was issued per curium on behalf of a panel with two Democratic appointees and one Republican appointee. In his opinion, Garland noted that his concurrence applied to “most of” the majority opinion, which included the Republican-appointed judge.
Of the six cases cited by NFIB that could actually be reasonably characterized as EPA “wins," Garland was joined in his opinion by at least one Republican appointee every time:
The NFIB scorecard suggests that Garland has been overly deferential to the DoL by claiming that the agency “wins 87% of cases” before Garland, citing eight DoL “wins” versus two “losses.”
The scorecard does not mention that in six of the DoL’s “wins,” Garland was in agreement with at least one Republican appointee judge.
Here are the Republican appointees who joined Garland’s opinions in favor of DoL in six of cases cited by NFIB:
The NFIB scorecard suggests that Garland has been overly deferential to the NLRB by claiming that the independent agency “wins 78% of cases” before Garland, citing 19 NLRB “wins” versus five “losses” and one “split decision.”
The scorecard does not mention that in 16 of the NLRB’s “wins,” Garland was in agreement with at least one Republican appointee judge. In the other three cases, FedEx Home Delivery v. NLRB, Northeast Bev. Corp v. NLRB, and Ross Stores, Inc. v. NLRB, the NFIB scorecard doesn’t tell the full story -- in all three cases Garland only partially dissented, agreeing in part with his Republican-appo
Here are the other 16 cases cited by NFIB where at least one Republican appointee agreed with Garland’s decision in favor of the NLRB:
Charts by Oliver Willis.