Fox Host Bret Baier Pushes Judicial Crisis Network Falsehoods To Criticize Supreme Court Nominee

Fox News' Bret Baier pushed falsehoods about Supreme Court nominee Merrick Garland's record on the Second Amendment, claiming that “he opposed Justice Scalia's take on the Second Amendment.”

During the March 16 edition of Fox News' Special Report with Bret Baier, host Bret Baier falsely claimed that Garland “opposed Justice Scalia's take on the Second Amendment in the Heller case” when asking White House press secretary Josh Earnest about Garland's nomination.

Baier's claim is erroneous and impossible. Justice Scalia delivered the majority opinion in Heller in June 2008, striking down Washington D.C.'s ban on handgun ownership as unconstitutional. Scalia's participation in the case came only after it passed through the D.C. Circuit, where Garland is chief judge.

When the case, then known as Parker v. District of Columbia, passed through the D.C. Circuit in 2007, Garland did not participate in the courts 2-1 decision. After that decision, the D.C. Circuit voted 6-4 to not rehear the case before the full court in an en banc hearing. Garland was one of four judges to vote to rehear the case. 

Voting to rehear a case does not mean that a judge is committing to deciding it one way or the other, nor is it conclusive of how Garland felt about Scalia's subsequent opinion in Heller.

In his report, Baier also failed to mention that Garland was joined in his vote to rehear the case en banc by the very conservative Judge A. Raymond Randolph.

Randolph was appointed by President George H.W. Bush and has been described as “one of the most outspoken and agenda-driven conservatives on the entire federal bench.”

Baier's characterization of Garland's record on the Parker case directly echoes falsehoods pushed about Garland by Judicial Crisis Network, a discredited right-wing group that plans to spend millions of dollars opposing Obama's nominee.

From the March 16 edition of Fox News' Special Report with Bret Baier:

BRET BAIER (HOST): Well let's talk about Judge Garland here. He obviously has received a lot of praise from Republicans in the past and Democrats as well. But there are some issues that raise eyebrows for Republicans. One is on the Second Amendment. He opposed Justice Scalia's take on the Second Amendment in the Heller case. How would you respond to conservative concerns that Garland would be the court's -- change the court's direction in limiting Second Amendment rights?

JOSH EARNEST: Yeah. Well listen, I think first of all this is a good reason for the Senate Judiciary Committee to actually move forward with hearings so we can actually hear directly from the nominee himself how he would approach these questions before the Supreme Court. There's a 19-year track record for us to examine. That's how long that Chief Judge Garland has been on the D.C. Circuit Court, often referred to as “the second highest court in the land.” He is somebody who is eminently qualified, and there's an opportunity for us to take a close look at his track record. We would welcome people doing that.

BAIER: But I'm just asking you, I mean it's kind of bold to put forward somebody who has in the past, according to his record, been for restrictions on guns to fill the seat of Justice Antonin Scalia, who obviously was the biggest gun rights advocate on the court.

EARNEST: Well I'm not going to speak for Chief Judge Garland in terms of describing his record. I'm merely suggesting that Senate Republicans, if they had this concern, have ample opportunity to question him about that. That would be entirely appropriate for them to do.