Merrick Garland

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  • NRA’s Wayne LaPierre Ironically Rails Against “Elites”

    Blog ››› ››› TIMOTHY JOHNSON

    National Rifle Association (NRA) executive vice president and CEO Wayne LaPierre railed against “elites” in a new NRA video, complaining that powerful people in politics, Hollywood, and the media “run our country.”

    In a July 5 video titled “We Don’t Need You,” released as part of the NRA’s “national campaign,” LaPierre complained that there is “no longer any difference between our politicians and the elite media who report on them, and the Hollywood elites who bankroll them both.”

    According to LaPierre, these groups of elite figures “work together, in some newsrooms and boardrooms and Washington back rooms and star-studded champagne fundraisers, to decide for the rest of us what's news and what's not, what's true and what's not, who gets protected, who goes to prison, who gets our money, and who gets our vote.”

    LaPierre added: “These elites threaten our very survival, and to them we say: We don't trust you, we don't fear you, and we don't need you. Take your hands off our future.”

    But if being elite means wielding outsized influence, LaPierre and the NRA are perfect definitions of the word.

    LaPierre gets more than $1 million each year in pay and other compensation from the NRA and is registered as a federal lobbyist for the organization. The NRA also wields outsized influence over Congress due to the longstanding, but false, belief that the organization has the ability to use elections to remove politicians from office who refuse to go along with its agenda. (Actual analyses of federal election outcomes and of NRA election spending have proved that the conventional wisdom is wrong, but the attitude persists in some respects, impacting congressional behavior.)

    While LaPierre put forward a populist message in the NRA video, it is the NRA that blocks broadly popular legislation and congressional action. The organization is widely credited as the reason Congress cannot pass legislation to expand background checks, a proposal favored by between 88 and 93 percent of voters. The NRA is also key in blocking legislation to prevent individuals on the terrorist watch list from purchasing firearms, a proposal favored by 86 percent of Americans. And Senate Majority Leader Mitch McConnell (R-KY) has cited the NRA’s opposition to Supreme Court nominee Judge Merrick Garland -- pointing to its distortion of Garland’s judicial record -- as justification for obstructing his nomination, even though strong majorities of voters want Garland to receive a hearing before the Senate Judiciary Committee.

  • Sen. Grassley Adopted Conservative Media Talking Point That Equates Trump’s Racism To Sotomayor’s Call For Diversity

    Grassley Now Claims His Recycled Comparison Was Misunderstood

    Blog ››› ››› TIMOTHY JOHNSON

    Sen. Chuck Grassley (R-IA) drew a false equivalence between presumptive GOP nominee Donald Trump’s racist claims about a federal judge and comments made by Supreme Court Justice Sonia Sotomayor about the importance of a diverse judiciary, prior to her nomination.

    The claim by Grassley -- who, as Senate Judiciary Committee chairman, is playing a key role in unprecedented Republican obstructionism of Merrick Garland’s nomination to the Supreme Court -- echoed a false right-wing talking point recently employed by Fox News’ Sean Hannity, CNN’s pro-Donald Trump commentator Jeffrey Lord, and other conservative figures.

    During a June 8 conference call with The Des Moines Register, Grassley reportedly said, “I think that you don’t have any more trouble with what Trump said than when Sotomayor said that -- when she was found saying in speeches that, quote, ‘A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male.’”

    Hours later when asked about his claim by NBC News correspondent Hallie Jackson, Grassley sought to walk back his comments. Despite having said that he didn't have "any more trouble" with Trump's racist remarks compared to Sotomayor's past statements, Grassley told NBC News, "I don't have to explain it. You just can't equate the two, and I wasn't meaning to equate the two." 

    Sotomayor did make the “wise Latina” remark in several speeches before she was nominated to the Supreme Court when discussing how much of U.S jurisprudence has been written by white men as opposed to by women and people of color.

    After the remark was raised during her confirmation hearing, Sotomayor clarified what she meant, stating, “I want to state upfront, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe every person has an equal opportunity to be a good and wise judge, regardless of their background or life experience.”

    Sotomayor explained the purpose of the remark was to inspire students “to believe they could become anything they wanted to become, just as I have.” The full context made that clear, as the future justice noted she sought to become more than the “sum total of my experiences”:

    I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    By comparison, Trump has made repeated racist attacks against federal Judge Gonzalo Curiel -- who is presiding over a lawsuit against Trump over fraud allegations concerning Trump University business practices -- including claiming bias from the judge because “he’s a Mexican.”

    Trump claimed that Curiel, who is in fact an American born in Indiana, has an “inherent conflict of interest” because of Trump’s promise to build a wall between the United States and Mexico. Trump’s remarks on Curiel were so blatantly rooted in the offensive assumption that all people of Mexican descent think or act the same  that even Speaker of the House Paul Ryan (R-WI) characterized them as “the textbook definition of a racist comment.”

    In his comments to the Register, Grassley also said of Sotomayor’s past statement, “I don’t hear any criticism of that sort of comment by a justice of the Supreme Court” -- even though conservative media relentlessly attacked her nomination in 2009 over the partial and misrepresented quote. Grassley was aware of the manufactured controversy at the time -- ABC News asked him why he didn’t ask the then-nominee about the statement during her confirmation hearing, and he said he didn’t want to “beat a dead horse” -- and he later cited The Washington Post’s discussion of the matter in his prepared statement explaining his “No” vote on Sotomayor’s confirmation.   

  • Wash. Post Debunks Mitch McConnell’s “Absurd” Claim That Merrick Garland Is Ideologically Extreme

    Blog ››› ››› MEDIA MATTERS STAFF

    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.

  • Law Professors: Republicans’ “Historically Unprecedented” Refusal To Consider Any Obama SCOTUS Nominee Creates “Constitutional Risks”

    Blog ››› ››› MEDIA MATTERS STAFF

    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.

    h/t Geoffrey R. Stone

  • NRA Complains The Media Aren’t Taking Its False Attacks On Garland Nomination Seriously

    Blog ››› ››› TIMOTHY JOHNSON

    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.

  • NY Times Editorial Board Slams Republican Obstruction On Garland Confirmation In Light Of Zubik V. Burwell Punt

    Blog ››› ››› MEDIA MATTERS STAFF

    The New York Times editorial board slammed Senate Republicans’ ongoing obstruction of Merrick Garland’s nomination to the Supreme Court, explaining that the inability to resolve the Zubik v. Burwell case shows the harm in a court “without a full bench.”

    On May 16, the Supreme Court handed down an unsigned per curiam opinion on the high-profile Zubik v. Burwell case, remanding the lawsuit back to a federal appeals court for further consideration of how religious accommodations are granted within the Affordable Care Act’s contraception mandate.

    The New York Times editorial board pointed out that this type of opinion, which does not create Supreme Court precedent but instead allows for the potential to revisit similar cases in the future, illustrates the harm in Senate Republican’ ongoing obstruction of Merrick Garland’s confirmation to the Supreme Court. The Times’ editorial board lamented that opinions such as Zubik “leave millions of Americans waiting for justice or clarity as major legal questions are unresolved,” and concluded that “despite what Senate Republicans may say,” the Zubik punt showed that “the court cannot do its job without a full bench.”

    From the May 16 editorial (emphasis added):

    Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.

    On Monday, the eight-member court avoided issuing a ruling on one of this term’s biggest cases, Zubik v. Burwell, which challenges the Affordable Care Act’s requirement that employers’ health care plans cover the cost of birth control for their employees. In an unsigned opinion, the court sent the lawsuits back to the lower federal courts, with instructions to try to craft a compromise that would be acceptable to everyone.

    This is the second time since Justice Antonin Scalia’s death in February that the court has failed to reach a decision in a high-profile case; in March, the court split 4 to 4 in a labor case involving the longstanding right of public-sector unions, which represent millions of American workers, to charge collective bargaining fees to nonmembers.

    [...]

    Unfortunately, the justices appear to be evenly split on this issue, as they may be on other significant cases pending before them.

    The court’s job is not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation’s laws. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.

     

  • Des Moines Register: Sen. Grassley Has “Called Into Question His Own Integrity” In Blocking Supreme Court Nomination

    Blog ››› ››› MEDIA MATTERS STAFF

    The Des Moines Register’s editorial board wrote that Sen. Chuck Grassley’s (R-IA) refusal to hold hearings on President Obama’s Supreme Court nominee “called into question” Grassley’s “own integrity” and could redefine the long-serving senator’s career. 

    On March 16, President Obama nominated Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. Since then, The Des Moines Register and other Iowa papers have been vocal in calling for Grassley, who heads the Senate Judiciary Committee and is in charge of initiating nomination hearings, to proceed with the nomination process. 

    The May 15 editorial claimed that Grassley’s obstruction of the nomination process gives the impression that the senator is “putting politics ahead of the national interest” and says that it isn’t just Democrats who disagree with Grassley. Citing poll numbers showing “67 percent of Americans favored Senate hearings on the Garland nomination,” the editorial demonstrated the public’s rejection of Grassley’s argument that the nomination process should be delayed until after the next election. 

    By announcing, within hours of Scalia’s death, his intent to prevent any Obama nominee from getting a hearing before the Senate Judiciary Committee, Grassley did more than stake out a controversial position on an issue. He called into question his own integrity and he created the appearance, at least, that he was putting politics ahead of the national interest.

    That’s not just the assessment of liberal Democrats, some of whom have expressed grudging respect for the senator over the years. Many Republicans are also deeply troubled by Grassley’s actions.

    Last week, a CNN poll found that 67 percent of Americans favored Senate hearings on the Garland nomination. Only 28 percent were opposed to hearings. Similar numbers were reported in an NBC News/Wall Street Journal poll in mid-April. What’s more, both polls show that public support for confirmation hearings is rapidly growing.

    Grassley hasn’t helped his cause with his claim that by blocking any Obama nominee to the court, he is simply “letting the people have their say” on the matter this November.

    “Not very often do the people have a chance to express the view on, ‘Do you want a very liberal person put on the court or a conservative person put on the court?’” Grassley says.

    Not very often? More like never. Supreme Court justices aren’t selected through any sort of popular vote — and for good reason. They’re not politicians, and issues of constitutional rights are best not determined on Election Day.

    And that’s the fundamental and inescapable problem with Grassley’s contrived “let the people speak” rationale for refusing to hold hearings. It’s built on a framework of contradictory assumptions that conflict with past practice and the U.S. Constitution, and aren’t even grounded in reality:

    First, there’s the notion that the general public — not just the president and the Senate — ought to have some say in selecting Supreme Court justices via the November presidential election. It’s bizarre that Grassley, who often complains the court is “too politicized” and doesn’t adhere to strict readings of the Constitution, would even suggest this.

    Second, there’s the assumption that presidential elections are single-issue referendums as to what sort of justices belong on the high court. Even now, with Scalia’s seat publicly held hostage by Grassley, voters say they’re far more concerned with a dozen other domestic and foreign issues.

    And finally there’s Grassley’s inexplicable assertion that while we can’t rely on the last two presidential elections to determine the will of the people, we will be able to rely on the next one.

    Over the course of six terms in the U.S. Senate, three terms in the U.S. House, and 16 years in the Iowa Legislature, Grassley cultivated a reputation for being a fair-minded, hard-working, bipartisan lawmaker.

    That well-deserved reputation is now badly damaged — perhaps irretrievably so.
     

  • Slate’s Dahlia Lithwick Urges Media To Cover “Unprecedented” Obstruction Of Merrick Garland’s Supreme Court Nomination

    Lithwick Explains How Dearth Of Garland Coverage Contributes To False Perception That Voters Don’t Care About The Nomination

    Blog ››› ››› MEDIA MATTERS STAFF

    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.

  • RedState Editors: With Trump As GOP Nominee, Senate Should Confirm Merrick Garland

    Blog ››› ››› MATT GERTZ

    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.

  • Scalia Opinion Further Undermines Koch-Backed Group's Attack That Merrick Garland Is Anti-Business

    Blog ››› ››› ZACHARY PLEAT

    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 deferential to federal government agencies. A Media Matters analysis of the 35 cases cited by NFIB, concerning Garland’s judicial opinions on the Environmental Protection Agency, Department of Labor, and the National Labor Relations Board, found that one or more judge appointed by a Republican was on the same side as Garland in 28 out of 35 -- or 80 percent -- of the cases.

    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 majority opinion adopted the same legal reasoning seen in a dissent that Garland joined, calling for the case to be reheard before the full D.C. Circuit.

    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.

  • Law Experts Shoot Down "Silly" "Nonsense" Attacks On Merrick Garland As Anti-Business

    Blog ››› ››› JOE STRUPP

    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.”

  • Koch-Backed NFIB Smears Merrick Garland As A Radical With Dishonest “Scorecard” Attacking His Judicial Rulings

    Blog ››› ››› TIMOTHY JOHNSON

    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:

    Environmental Protection Agency

    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 judge. NFIB’s scorecard also doesn’t tell the full story or misleads on the other two cases it cites.

     

    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:

    • In Allied Local and Regional Manufacturers Caucus v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Tatel (Clinton appointee).
    • In Appalachian Power Co. v. EPA, a per curium opinion authored by Garland and Judge Wald (Carter appointee) was joined by Henderson (H.W. Bush appointee).
    • In Cement Kiln Recycling Coalition v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
    • In Chamber of Commerce of U.S. v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Brown (W.Bush appointee).
    • In National Association of Home Builders v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Rogers (Clinton appointee) and Williams (Reagan appointee).
    • In Utility Air Regulatory Group v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Rogers (Clinton appointee) and Kavanaugh (W. Bush appointee). Kavanaugh also filed a separate concurring opinion.

    Department of Labor

    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:

    National Labor Relations Board

    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-appointed colleague's majority ruling.

     

    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:

    • In Assoc. of Civ. Tech., Puerto Rico Army v. FLRA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Tatel (Clinton appointee) and Griffith (W.Bush appointee).
    • In Antelope Valley Bus Co., Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Tatel (Clinton appointee) and Williams (Reagan appointee).
    • In Ark Las Vegas Restaurant Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
    • In Bally’s Park Place, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Ginsburg (Reagan appointee).
    • In Ceridian Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Griffith (W. Bush appointee).
    • In Dean Transportation, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
    • In Flying Food Group, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Kavanaugh (W.Bush appointee).
    • In Halle Enterprises, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Tatel (Clinton appointee).
    • In ITT Industries, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judge Randolph (H.W. Bush appointee) and Judge Roberts -- a Bush appointee who is now Chief Justice of the Supreme Court.
    • In Lee Lumber and Bldg. Material Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Rogers (Clinton appointee). Sentelle also filed a separate concurring opinion.
    • In Mohave Elec. Co-op, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Henderson (H.W. Bush appointee).
    • In Pacific Bell v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Williams (Reagan appointee).
    • In Pacific Coast Supply, LLC v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Griffith (Bush appointee) and Kavanaugh (Bush appointee).
    • In Shamrock Foods Co. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Tatel (Clinton appointee).
    • In Spectrum Health -- Kent Community Campus v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Griffith (Bush appointee).
    • In Spurlino Materials, LLC v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Williams (Reagan appointee) and Randolph (H.W. Bush appointee).

    Charts by Oliver Willis. 

  • SCORECARD: National Federation Of Independent Business vs. Small Business

    Blog ››› ››› DENISE ROBBINS

    The National Federation of Independent Business (NFIB) claims that it is speaking for the small business community in its opposition to Merrick Garland's Supreme Court nomination. In reality, NFIB is 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.

    NFIB has released a scorecard criticizing Garland for allegedly having “ruled against private parties and especially private businesses with striking regularity.” But here is how NFIB rates on Media Matters' small business scorecard:

     

  • Des Moines Register Castigates Sen. Chuck Grassley For Refusing To Hold Hearing On Garland

    Blog ››› ››› MEDIA MATTERS STAFF

    The Des Moines Register editorial board excoriated Sen. Chuck Grassley (R-IA) for his "simple stubbornness" in refusing to hold hearings on President Obama's Supreme Court nominee, Merrick Garland. The board slammed Grassley for his willingness to leave the court "weakened' calling his position purely partisan and "un-American."

    On March 16, President Obama nominated Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy on the Supreme Court. Conservative media have urged Republican senators to refuse to even consider any Obama nominee, and the GOP lawmakers have said they will not even give a nominee a hearing, an unprecedented obstructionist move. However, Iowa newspaper editorial boards including the Register, have been steadfast in their criticism of Grassley's "obstructionism" since he initially announced opposition to holding hearings for an Obama nominee.

    The Register's April 4 editorial condemned Grassley -- head of the Senate Judiciary Committee -- for refusing to give Garland a hearing, calling the move "pure partisanship -- and simple stubbornness," and noting that while the Supreme Court is functioning, it's "not to its full effectiveness." The editorial lectured Grassley, noting, "Senator, this seat needs to be filled, regardless of whether the presidency and your own seat is up for grabs in November," and concluded by castigating his refusal to give Garland a chance as "unsatisfying" and "un-American":

    Ties are unsatisfying, even un-American. Nothing against sports like soccer and rugby, but most U.S. sports fans prefer contests in which draws rarely if ever happen. We want a winner.

    Americans might need to get used to deadlocks, thanks to Sen. Chuck Grassley. The head of the Senate Judiciary Committee seems just fine with stalemate.

    [...]

    The Supreme Court will continue to function, but not to its full effectiveness as a third branch of government. There are already signs that the pace of rulings has slowed in the last two months.

    How long should the nation's highest court be weakened, and in some situations, effectively neutered? For more than a year, according to Grassley and other Republicans.

    Grassley, chairman of the Senate Judiciary Committee, has argued that the appointment should be delayed until a new president is sworn in 2017 -- even if Democrat Hillary Clinton wins in November.

    He calls it a waste of time to consider President Barack Obama's nominee for the court, Merrick Garland. Even though few disagree that Garland's resume is superb. Grassley even said so in 1997, when the Senate was considering Garland for an appeals court nomination: "He seems to be well-qualified. He would probably make a good judge in some other court ... where the seat needs to be filled."

    Senator, this seat needs to be filled, regardless of whether the presidency and your own seat is up for grabs in November.

    We have admired Grassley's principled stands on issues in his 35-year tenure as U.S. senator. In most cases, these stands have ensured government works more effectively and efficiently for his constituents and taxpayers.

    But refusing to hold hearings on Garland is pure partisanship -- and simple stubbornness.

    Grassley won't give Garland a chance, to even let him in the game.

    That's unsatisfying. And un-American.