Myths And Facts On The Nomination Of Judge Merrick Garland To The Supreme Court
Since the lead-up to President Obama's March 16 nomination of Judge Merrick Garland to the Supreme Court, the judge has faced misleading and false attacks, as well as a concerted push for continued obstruction of any Supreme Court nominee chosen by Obama. Here are the facts about the nominee, previous lines of right-wing attack, and information on the nomination and confirmation processes going forward.
Media Matters will continue to update this post as we encounter and debunk new media misinformation on Judge Merrick Garland, his judicial record, and the Supreme Court nomination process.
- MYTH: Small-Business Owners Overwhelmingly Oppose Garland's Nomination
- MYTH: Garland “Sided Against” Group Challenging Process For Exemption From Affordable Care Act Contraception Measure
- MYTH: Garland's Volunteer Record For Democratic Candidates Decades Ago Makes Him Unsuitable For The Supreme Court
- MYTH: Garland's Former Clerks' Career Paths Reveal His “More-Liberal-Than-Touted Views”
- MYTH: Garland Is A “Pro-Abortion Pick”
- MYTH: Garland Was “The Only Dissenter” In A Case Striking Down “An Illegal, Job-Killing EPA Regulation”
- MYTH: Garland's Vote To Rehear A 2007 Case On D.C.'s Handgun Ban Reveals A “Very Liberal View On Gun Rights”
- MYTH: Garland Upheld D.C.'s Handgun Ban
- MYTH: Garland Upheld An “Illegal Clinton-Era Regulation” Creating A Gun Registry Requirement
- MYTH: Garland's Rose Garden Remarks Following His Nomination Were “Highly Unusual”
- MYTH: Refusing To Hold Hearings For President's Supreme Court Nominee Is Not Unusual
- MYTH: Republicans Opposed Previous Obama Nominees For Legitimate Reasons
- MYTH: Making Nominations To Fill Routine Court Vacancies Is The Same As “Court-Packing”
- MYTH: Republicans And Democrats Are Equal-Opportunity Obstructionists When It Comes To Presidential Nominees
- MYTH: Republicans' Unprecedented Obstructionism Does Not Have Negative Consequences
Obama Names Judge Merrick Garland As His Nominee To The Supreme Court
President Obama Named Judge Merrick Garland As His Nominee To The Supreme Court. On March 16, President Obama named Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court. Garland has served on the D.C. Circuit since 1997. [The New York Times, 3/16/16]
Garland Has Been The Subject Of False Right-Wing Attacks
MYTH: Small-Business Owners Overwhelmingly Oppose Garland's Nomination
National Federation Of Independent Businesses Announced Opposition To Garland Nomination. The National Federation of Independent Business (NFIB), which describes itself as “America's leading small business association,” announced its opposition to Garland's nomination in late March. In a Wall Street Journal op-ed headlined “We Oppose Judge Garland's Confirmation,” NFIB president Juanita Duggan described her organization as “the country's largest advocate for small-business owners” and claimed that Garland “would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers.” The New York Times reported that NFIB “is expected to have much more to say about Judge Garland as the Senate impasse over his nomination continues.” [Media Matters, 3/30/16; NFIB.com, accessed 3/30/16; The Wall Street Journal, 3/16/16; The New York Times, 3/25/16]
NFIB Placed Op-Eds Opposing Garland In Newspapers Across The Country. NFIB has launched an op-ed campaign against Garland, with state affiliates of NFIB echoing Duggan's Wall Street Journal op-ed in newspapers across the country. Each of these op-eds -- which are nearly identical to one another, despite having different “authors” -- has claimed that NFIB is “the country's leading advocate for small-business owners.” So far, the op-eds have been published in newspapers in Florida, Illinois, New Hampshire, Iowa, and Montana. Florida's Sun-Sentinel and Illinois' State Journal-Register adopted NFIB's description of itself as the “largest” or “leading” small-business association in their respective states. [Sun-Sentinel, 3/28/16; The State Journal-Register, 3/25/16; New Hampshire Union Leader, 3/24/16; The Des Moines Register, 3/29/16; Billings Gazette, 3/25/16; Missoulian, 3/27/16; Montana Standard, 3/28/16]
Judicial Crisis Network Began Running Ad That Cites NFIB To Claim “Small Business Leaders” Oppose Garland. In a million-dollar ad buy attacking Garland, the discredited conservative group Judicial Crisis Network (JCN) has referenced NFIB to claim: “Small business leaders say he would side with special interests, unleash accountable agencies like the EPA, and hurt jobs.” [Politico, 3/24/16; YouTube.com, 3/24/16]
FACT: The “Small Business” Opposition To Garland Is Actually Spearheaded By A Corporate-Funded Group
NFIB Has Received Millions From Koch-Linked Groups. According to CNN.com, NFIB “got more money [in 2012] from a group backed by billionaire industrialists Charles and David Koch than any other single source.” The Freedom Partners Chamber of Commerce, which CNN.com says has “deep ties” to the Koch brothers, gave NFIB $1.5 million in 2012 and gave an additional $1 million to three NFIB-affiliated groups, according to CNN.com's review of the group's tax records. CNN.com said four of Freedom Partners' five board members are “current or former employees of Koch companies and one is a friend of Charles Koch's.” DonorsTrust, a dark money group that is largely backed by groups affiliated with the Koch brothers, gave over $4 million to NFIB-affiliated groups between 2010 and 2012. Additionally, Free Enterprise America, a group founded by Koch operative Sean Noble and funded by a chain of conservative nonprofits linked to the Koch brothers, contributed $500,000 to NFIB in 2010. [Media Matters, 3/30/16; Conservative Transparency, accessed 3/30/16; Media Matters, 2/28/13; Huffington Post, 9/17/13; ProPublica, 2/14/14; CNN.com, 11/21/13]
NFIB Has Received Over $5 Million From Karl Rove's Crossroads GPS. NFIB received $3.7 million in 2010 and over $1.4 million in 2012 from Crossroads GPS, the conservative group founded by Karl Rove that funds attacks against Democratic candidates across the country. As Public Campaign has noted, “While Crossroads GPS keeps its donors secret, its aligned super PAC (American Crossroads) has received millions from some of the country's wealthiest donors and special interests.” [Conservative Transparency, accessed 3/30/16; Media Matters, 8/26/14; Public Campaign, 6/26/12]
NFIB Is A Member Of The American Legislative Exchange Council (ALEC), A “Corporate Bill Mill.” The Center for Media and Democracy's PR Watch reported in 2014:
The National Federation of Independent Business (NFIB), a big business-funded group that claims to be the “nation's leading small business association,” has joined the corporate board of the American Legislative Exchange Council, or “ALEC.” It marks perhaps the final step towards the NFIB abandoning any pretense of being a nonpartisan representative of small business owners.
ALEC has been described as a “corporate bill mill” that allows big business interests to peddle influence with ALEC's legislative members -- who are almost entirely Republican -- and push “model” legislation that tends to benefit the corporate bottom line or advance an ideological agenda. [PR Watch, 8/1/14; Media Matters, 2/3/15]
NFIB Website No Longer Says Group Is “NOT A Voice For Big Business.” As late as February 2015, NFIB had a section on the “About NFIB” page ofits website called “What is NFIB Not?” It claimed that NFIB is “NOT a voice for Big Business” and is “NOT under the direction of major contributors.” That section no longer appears on NFIB's “About NFIB” page. [Archive.org, accessed 3/30/16; NFIB.com, accessed 3/30/16]
Public Citizen: NFIB Is “Taking The Name Of Small Business In Vain.” CNN.com reported in 2013:
The big-money donations are raising questions about whose agenda NFIB is serving, that of mom-and-pop businesses or the captains of big industry.
Lisa Gilbert of the government watchdog group Public Citizen said the NFIB is “taking the name of small business in vain.”
“The idea that Koch brothers money in some way is going to help small businesses is laughable,” Gilbert said. “What they're buying is the ability to help set the agenda.” [CNN.com, 11/21/13]
FACT: NFIB's Positions On Many Issues Run Counter To Those Of Small-Business Owners
NFIB Opposing Garland For Purportedly Catering To “Regulators, Labor Unions, And Trial Lawyers,” Including The EPA. NFIB's Juanita Duggan wrote in her Wall Street Journal op-ed that Garland “would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers,” citing Garland's circuit court rulings concerning the Environmental Protection Agency (EPA) to claim that he would give “the EPA and other regulators ... a freer hand to impose even more costs on small businesses.” The Washington Post has noted that NFIB is a plaintiff in three cases that may be decided by the Supreme Court, two of which challenge the EPA. [Media Matters, 3/30/16; The Wall Street Journal, 3/16/16; The Washington Post, 3/25/16]
NFIB Challenged The EPA's Clean Water Rule In Court, But 80 Percent Of Small-Business Owners Support The Rule. NFIB has sued the EPA and the U.S. Army Corps of Engineers in order to block the rule that clarifies the Clean Water Act, which would protect streams and wetlands that feed into sources of drinking water for 117 million Americans. NFIB ran an op-ed campaign last year attacking the plan to protect drinking water. A poll from the American Sustainable Business Council (ASBC) found that small-business owners nationwide “assign high importance to clean water for their own operations and believe that government regulations are needed to safeguard it.” Specifically, the poll found that 80 percent of small-business owners, which it defined as employers of between two and 99 people, support the proposed protections for streams and wetlands in the EPA's Waters of the United States rule. [NFIB.com, 11/4/15; Media Matters, 7/1/14; American Sustainable Business Council, 7/23/14; Missoulian, 7/1/15; The Denver Post, 6/15/15; Lincoln Journal Star, 7/6/15; The Bismarck Tribune, 7/4/15; Kearney Hub, 7/4/15; Las Vegas Review-Journal, 7/6/15]
NFIB Attacked Affordable Care Act, Even Though Most Small-Business Owners Support The Law. NFIB was the lead plaintiff in a Supreme Court case challenging the Affordable Care Act (ACA). In a post titled “The Group Trying To Kill Obamacare,” Salon's Alex Seitz-Wald reported that NFIB's lawsuit against the ACA cost at least $2.9 million in 2010 alone. When The New York Times revealed that NFIB's television ad and other anti-ACA efforts were largely bankrolled by the health insurance industry, the paper quoted Center for Responsive Politics executive director Sheila Krumholz as saying: “If people who see this ad have no idea who is actually bankrolling it, they are in effect being misinformed.” A poll conducted by Small Business Majority in 2012 about the NFIB lawsuit against the ACA found that 50 percent of small-business owners wanted the Supreme Court to uphold the ACA with little or no changes, and only 34 percent of small-business owners wanted the Supreme Court to overturn it. After learning more about the health care law, 56 percent of small-business owners supported keeping it intact or maintaining it with only minor changes, twice the number that wanted it overturned. Small Business Majority founder and CEO John Arensmeyer said small-business owners “see this law as helping everyone have coverage and bringing down healthcare costs -- something that has been one of their top concerns for years.” [Salon, 6/25/12; The New York Times, 7/25/14; Small Business Majority, 6/14/12; 6/14/12]
NFIB Has Fought Against Raising Taxes On The Wealthiest Americans, Even Though Polls Show Small-Business Owners Support These Efforts. NFIB has opposed eliminating tax breaks for the wealthy, including President Obama's proposal to raise taxes on those making more than $250,000 per year. Mother Jones reporter Josh Harkinson observed that “leaders of the NFIB itself have a direct stake in the anti-tax mission,” noting that the group paid then-president Dan Denner more than $700,000 in 2011 and that at least seven other NFIB staff members “also earn salaries in excess of $250,000, the cutoff for paying higher taxes under the Obama plan.” Meanwhile, a 2012 poll from Small Business Majority found that 52 percent of small-business owners “agree that while no one likes to raise taxes, we should raise taxes on the wealthiest 2%, given the budget situation, and 4 in 10 strongly agree.” By contrast, only 39 percent of small-business owners opposed raising taxes on the top 2 percent of earners, and only a quarter of small-business owners strongly opposed doing so. Harkinson concluded:
Only 3 percent of small businesses net more than $250,000 a year, the lowest income that would be affected by Obama's tax plan. This is one reason why a variety of rival smallbusiness groups now accuse the NFIB of doing exactly what it was founded to prevent: selling out smallbusiness owners to benefit the rich and powerful. [NFIB.com, 9/21/10; The Washington Post, 5/6/12; Mother Jones, 7/23/12; Small Business Majority, 10/25/12]
NFIB Has Opposed Minimum Wage Increases And Paid Sick Leave, Even Though Vast Majority Of NFIB's Own Members Do Not Consider These To Be Major Issues. NFIB has frequently attacked minimum wage increases and paid sick leave on the national, state, and local levels, and recently announced its opposition to a $15 minimum wage in California. A 2012 survey of NFIB's own members, however, found that only 8.6 percent considered demands to raise the minimum wage to be a “critical problem,” and as ThinkProgress noted, the issue ranked “number 52 out of 75 issues -- well in the last third.” Nearly 30 percent of NFIB members said increasing the minimum wage is “not a problem” at all. Paid sick leave ranked “even lower among [NFIB's] members,” as ThinkProgress explained, “with 7.8 percent deeming it critical and 35.1 percent saying it's not a problem.” [NFIB.com, accessed 3/30/16; 3/30/16; 3/30/16; 12/5/13; 2/26/16; 3/17/16; 3/9/16; Highland News, 3/28/16; NFIB.com, accessed 3/30/16; ThinkProgress, 3/21/14]
MYTH: Garland “Sided Against” Group Challenging Process For Exemption From Affordable Care Act Contraception Measure
LifeSiteNews: Garland “Ruled Against Priests For Life In A Case Involving The HHS Mandate.” In a March 18 article, the anti-choice news site LifeSiteNews wrote that Garland had “sided against Priests for Life,” a religious group arguing that the accommodation process that allows it to opt out of the Affordable Care Act's contraception mandate still violates their right to religious freedom. The article claimed that the case “give[s] a window into the philosophy of Judge Garland” because he declined to reconsider a panel decision that allegedly “broke new legal ground in a way that could undermine religious freedom nationwide”:
Judge Merrick Garland, Barack Obama's choice to be the next justice on the Supreme Court, ruled against Priests for Life in a case involving the HHS mandate.
He also gave ObamaCare subsidies a second chance at life in a separate case.
The two rulings give a window into the philosophy of Judge Garland, whom the National Organization for Women referred to as a “cipher” with little paper trail on issues related to abortion or other feminist concerns.
Priests for Life sued the U.S. Department of Health and Human Services (HHS) over its mandate that employers provide contraception, sterilization, and abortifacient drugs to female employees with no co-pay. The group can opt out of the provision by filing paperwork, which requires its insurance company to provide birth control for “free.”
Like the Little Sisters of the Poor, Priests for Life argues that this step also infringes on its freedom of religion by forcing it to participate in the process of contraceptive and abortifacient distribution, something the Roman Catholic Church describes as a “grave sin.”
When the pro-life organization appealed a lower court's ruling, a three-judge panel of the Washington, D.C.-based Second Circuit ruled against them.
Supreme Court justices combined Priests for Life v. HHS with six other cases into one overall hearing on the HHS mandate. Oral arguments are scheduled for next Wednesday.
Judge Garland voted against Priests for Life's petition for an en banc review in a 6-3 majority, allowing the decision against the group to stand.
“Garland didn't write anything separately on it,” Jay Wexler, an expert on church-state law at Boston University, told The Washington Post. But his vote indicates that Judge Garland “didn't think the panel opinion denying the Priests' religious freedom claim was clearly wrong.”
That is significant, because the panel's decision broke new legal ground in a way that could undermine religious freedom nationwide. [LifeSiteNews, 3/18/16]
FACT: Garland's En Banc Vote On The Priests For Life Case Reveals No Ideological Bent
People For The American Way: An En Banc Vote Alone “Does Not Necessarily Tell You Anything About Why The Judge Voted That Way.” The nonprofit People for the American Way (PFAW) responded to LifeSiteNews' attack on Garland's vote opposing an en banc rehearing of the Priests For Life case by noting, as many legal experts have already stated in response to similar attacks on Garland's record, that a vote on rehearing a case en banc does not reflect how a judge would theoretically rule in the case. PFAW also wrote that, like in the case of Garland's other en banc votes attacked by conservative groups, Garland was joined by a conservative judge on the vote in question:
In any event, Life Site News slams Judge Garland for voting against having the entire D.C. Circuit rehear the Priests for Life case. A vote for or against en banc review, absent an accompanying opinion, does not necessarily tell you anything about why the judge voted that way. In fact, several of the judges wrote or joined lengthy opinions explaining why they were for or against an en banc review. Chief Judge Garland joined none of them. Neither did George W. Bush nominee Thomas Griffith or Clinton nominee David Tatel, both of whom voted along with Chief Judge Garland not to rehear the case. The majority of the court voted against en banc review, so we don't know how Garland would have voted on the merits of the case.
There could be any number of reasons not to want to review a panel decision; perhaps you agree with it; perhaps you think the issue is not important enough to merit that unusual step; perhaps you think a different case would be a better vehicle for addressing the legal issues; perhaps you're concerned about the court's workload; perhaps you know that numerous other circuits are addressing the exact same question and that - regardless of whether your court reconsiders the panel decision - the issue will be resolved by the Supreme Court, so that an en banc review would be a pointless waste of time and resources. [People for the American Way, 3/21/16]
FACT: The Law Upheld In Priests For Life Was Also Upheld By Seven Other Appellate Courts Across The Country
People For The American Way: “Same Legal Conclusion Has Been Reached” In Seven Other Appellate Courts. People for the American Way also noted that seven other appellate courts reached “the same legal conclusion” as the original panel of judges in the Priests For Life case -- which did not include Garland -- and that only the 8th Circuit Court of Appeals had reached the opposite conclusion, thus leading to the challenge being consolidated and brought to the Supreme Court:
A unanimous three-judge panel on the D.C. Circuit (which did not include Garland) upheld the law as not violating the Religious Freedom Restoration Act (RFRA). Hardly an outlier, the same legal conclusion has been reached by the 2nd Circuit, the 3rd Circuit, the 5th Circuit, the 6th Circuit, the 7th Circuit, the 10th Circuit, and the 11th Circuit. Last fall, the 8th Circuit reached the opposite conclusion, creating a circuit split that will be resolved by the Supreme Court. [People for the American Way, 3/21/16]
MYTH: Garland's Volunteer Record For Democratic Candidates Decades Ago Makes Him Unsuitable For The Supreme Court
Washington Free Beacon Attacked Garland For Volunteering For Democrats In 1980s and 1990s. The Washington Free Beacon reported that Garland, who “was presented as a moderate that could have bipartisan appeal,” has previously “offered his services to numerous Democratic presidential candidates.” The Free Beacon cited a questionnaire Garland submitted to the Senate Judiciary Committee at the time of his nomination for the D.C. Circuit in 1995, which indicated that he had “provided volunteer assistance on a Presidential Debate for President Clinton in October 1992 and for Michael Dukakis in October 1988” and “did some volunteer work for Walter Mondale's presidential campaign in 1983-84.” From the article:
President Barack Obama's choice for the vacant seat on the Supreme Court was presented as a moderate that could have bipartisan appeal, but Merrick Garland has previously disclosed in official documents that he has offered his services to numerous Democratic presidential candidates.
Buried in a questionnaire Garland submitted to the Senate Judiciary Committee in 1995 is his disclosure of volunteer work for Democratic politicians that stretched from his years as a college student up to Bill Clinton's presidential campaign in 1992.
“I provided volunteer assistance on a Presidential Debate for President Clinton in October 1992 and for Michael Dukakis in October 1988,” Garland wrote in response to a question on his previous political involvement. “I did some volunteer work for Walter Mondale's presidential campaign in 1983-84. As a college student, I worked two summers for the campaign of my then-congressman, Abner Mikva, in 1972 and 1974.” [Washington Free Beacon, 3/17/16]
FACT: President George W. Bush Nominated Chief Justice John Roberts To Supreme Court Just 5 Years After He Volunteered For Bush's Campaign
Roberts Served On The Lawyers For Bush-Cheney Committee, Assisted With Litigation For The 2000 Recount Fight. In the questionnaire John Roberts submitted to the Senate Judiciary Committee upon his nomination for the Supreme Court in 2005, which asked him to list his services rendered to a political party, Roberts responded that he had served on Lawyers for Bush-Cheney and that “At the requests of Benjamin Ginsberg and Ted Cruz, I went to Tallahassee in November 2000 to assist those working on behalf of George W. Bush on various aspects of the recount litigation”:
Executive Committee, D.C. Lawyers for Bush-Quayle '88.
Lawyers for Bush-Cheney.
At the requests of Benjamin Ginsberg and Ted Cruz, I went to Tallahassee in November 2000 to assist those working on behalf of George W. Bush on various aspects of the recount litigation. My recollection is that I stayed less than one week. I recall participating in a preparation session for another lawyer scheduled to appear before the Florida Supreme Court and generally being available to discuss issues as they arose. I returned to Tallahassee at some later point to meet with Governor Jeb Bush, to discuss in a general way the constitutional and statutory provisions implicated by the litigation. [Roberts questionnaire, accessed 3/17/16]
In Naming Roberts To The Bench, Bush Highlighted His Bipartisan Credentials. In his speech announcing that he would nominate Roberts to be chief justice of the Supreme Court, Bush highlighted how Roberts had “earned the respect of people from both political parties.” From Bush's speech:
Judge Roberts has earned the respect of people from both political parties.
After he was nominated for the Court of Appeals in 2001, a bipartisan group of more than 150 lawyers sent a letter to the Senate Judiciary Committee.
They wrote, “Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding Federal Court of Appeals judge and should be confirmed by the United States Senate.”
The signers of this letter included a former counsel to a Republican president, a former counsel to two Democratic presidents and former high-ranking Justice Department officials of both parties.
I believe that Democrats and Republicans alike will see the strong qualifications of this fine judge, as they did when they confirmed him by unanimous consent to the judicial seat he now holds. [Transcript of President Bush's nomination of John Roberts, 7/19/2005, via CNN.com]
MYTH: Garland's Former Clerks' Career Paths Reveal His “More-Liberal-Than-Touted Views”
USA Today: “Garland Is Clearly Left Of Center By One Measure”: His Former Clerks' Career Paths. In a March 16 profile of Garland, USA Today reported that, although Garland is widely considered a moderate, he “is clearly left of center by one measure,” citing its own finding that 33 of Garland's former law clerks went on to clerk for liberal Supreme Court justices, and 11 went on to clerk for conservative justices:
He is billed as a moderate -- a label that may worry liberal advocacy groups concerned about issues such as abortion rights and gun control. But the label applies more to his method of deciding cases. Like Roberts, he adopts a minimalist approach; like Kagan, he works at persuading more conservative colleagues.
At the same time, conservatives insist he's a liberal in centrist clothing.
Garland is clearly left of center by one measure. A check of his former law clerks finds 33 who went on to clerk for liberal Supreme Court justices and only 11 for conservatives. Justices who took the most ex-Garland clerks were Stephen Breyer, [Ruth Bader] Ginsburg, [Elena] Kagan and retired justice John Paul Stevens. [USA Today, 3/16/16]
Anti-Choice News Site Further Distorted This Measure, Suggesting It “Tells A Different Story” About Garland's Ideology. LifeNews.com, an anti-choice news site, pushed the USA Today survey of former Garland clerks as “new information” that “is surfacing” to reveal Garland's “more-liberal-than-touted views.” The article claimed that this count served as evidence of “a different story” about Garland's moderate views:
Information continues to surface about the views of President Barack Obama's Supreme Court nominee Merrick Garland. Judge Garland already has the backing of the Planned Parenthood abortion corporation and opposition from pro-life groups.
Now, new information is surfacing showing that his former clerks have gone on to serve liberal judges by a 3-1 margin.
Although Obama paints Judge Garland as a moderate a survey of his former staff tells a different story. Of his former law clerks, 33 went on to serve liberal Supreme Court justices. Only 11 were hired by constitutionalists.
As the liberal USA Today newspaper reports: “Garland is clearly left of center by one measure. A check of his former law clerks finds 33 who went on to clerk for liberal Supreme Court justices and only 11 for conservatives. Justices who took the most ex-Garland clerks were Stephen Breyer, Ginsburg, Kagan and retired justice John Paul Stevens.”
“We sort of know where he's coming from,” says Brian Rogers of the conservative group America Rising of Garland's more-liberal-than-touted views. [LifeNews.com, 3/17/16]
FACT: Having Former Clerks Work For Both Liberal And Conservative Justices Is “Increasingly Rare”
Wash. Post: Garland's Former Clerks Clerking For Liberals And Conservatives Is An “Increasingly Rare” Phenomenon. In a March 17 article discussing Garland's record as a moderate jurist, The Washington Post noted that Garland's bipartisan track record for former clerks later clerking at the Supreme Court is unusual, writing, “Such cross-pollination is increasingly rare”:
Moreover, Garland is well known to the Supreme Court. More than 40 of his clerks have gone on to clerk for the justices, about a quarter of them for conservative members of the court. Such cross-pollination is increasingly rare. [The Washington Post, 3/17/16]
MYTH: Garland Is A “Pro-Abortion Pick”
Wash. Times: “No Surprise That Pro-Choice Advocates Are In Favor” Of Garland. In a report detailing reactions from advocacy groups to Garland's nomination, The Washington Times claimed that “it is no surprise” that pro-choice groups would support Garland's nomination. The paper quoted the acting president of anti-choice group Americans United for Life and cited Garland's comment that the released papers of Supreme Court Justice Harry Blackmun were a “great gift to the country” as evidence of a “pro-abortion” stance, since Blackmun wrote the opinion of the court in Roe v. Wade:
It is no surprise that pro-choice advocates are in favor of Judge Gardner (sic) as the nominee. In 2005, he said the recently released papers of former Supreme Court Justice Harry Blackmun -- who authored the infamous 1973 Roe v. Wade decision legalizing abortion -- are a “great gift to the country.”
Clark Forsythe, senior counsel and acting president of Americans United for Life, called Judge Garland a “pro-abortion pick.” He said the next president should fill the vacancy on the bench of the late Supreme Court Justice Antonin Scalia.
“Judge Merrick Garland is President Obama's pro-abortion pick to tempt some Republicans to act now to fill the vacancy on the Supreme Court,” Mr. Forsythe said in a statement. “The President's commitment to unrestricted, unmonitored and taxpayer funded abortion is well known.” [The Washington Times, 3/17/16]
FACT: Garland Has Never Issued An Opinion On A Reproductive Rights Case
Garland Has Never Issued An Opinion On An Abortion Case. According to an opinion piece written by Time reporter Charlotte Alter, titled “Merrick Garland: The Abortion Rights Sphinx,” Garland has never issued an opinion or made a major ruling in any case related to reproductive rights or abortion. Alter explained that both pro-choice and anti-choice advocacy groups are “project[ing] their hopes and fears” on Garland to make assumptions about how the judge might rule on such cases were he to serve on the Supreme Court (emphasis added):
Yet nobody seems to know what Judge Garland thinks about abortion. He won't have a say in the current abortion case, but his position could be important for future abortion rulings.
As journalists scoured his earlier decisions for any hint of a social agenda, former clerks said the search was futile: Garland has never issued an opinion on an abortion case, and would never have discussed a case he wasn't deciding, even in private. Since the DC Circuit Court of Appeals usually hears procedural or administrative cases, he's never had to make a major ruling on a case about reproductive issues.
Even in private, former clerks say Judge Garland never revealed his views on reproductive issues. “The mask never slipped,” says David Pozen, an associate professor at Columbia Law School who clerked for Garland in 2008.
“We truthfully never talked about it,” says Jay Michaelson, a legal affairs columnist for the Daily Beast who clerked for Garland in 1998. “We knew better than to ask.”
Michaelson says Garland has a strong respect for legal precedent (which implies he might be reluctant to overturn Roe v Wade). He's also repeatedly upheld “substantive due process,” the legal name for so-called “right to privacy”: the notion that there's no process by which the government can regulate decisions as personal as sexual relationships or reproduction. “The doctrines that underly Roe vs Wade are doctrines that he has upheld,” Michaelson adds.
But the lack of a tangible record has led both pro-choice and anti-abortion groups to project their hopes and fears onto Garland, and both sides are drawing assumptions about his position based on the fact that Obama appointed him. [Time, 3/17/16]
MYTH: Garland Was “The Only Dissenter” In A Case Striking Down “An Illegal, Job-Killing EPA Regulation”
The Judicial Crisis Network's “Topline Points” Opposing Garland's Nomination Claim He Was “The Only Dissenter” In A Case “Striking Down” A Rule Proposed By The EPA. Following the March 16 announcement of Garland's nomination, the discredited conservative group Judicial Crisis Network, whose chief counsel is also a conservative pundit who frequently writes for National Review's legal blog, released a series of “topline points” outlining the group's opposition to Garland. In this statement, JCN claimed that Garland was “the only dissenter in a 2002 case striking down an illegal, job-killing [Environmental Protection Agency] regulation” known as the haze rule:
Judge Garland was the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation (the “Haze Rule”) that would have, in the majority's words, forced businesses “to spend millions of dollars for new technology that will have no appreciable effect” on haze in the area. Garland would have upheld the rule. [Scotusbrief.org, 3/16/16]
FACT: All Three Judges In The Case Agreed That The Fundamental Goals Of The EPA Rule Were Lawful
Associated Press: Majority Opinion “Upheld The Program's Fundamental Goal.” An Associated Press report on the 2002 American Corn Growers Association v. Environmental Protection Agency ruling stated that the judges had rejected a petition challenging the entirety of the rule, instead issuing a majority opinion that “upheld the [EPA] program's fundamental goal” to implement pollution controls in parks and wilderness areas under the Clean Air Act while ruling that a specific directive in the rule was unlawful. Garland's dissent argued that the EPA had the authority to issue that specific provision, while the majority opinion disagreed:
In a 2-1 decision Friday, a three-judge panel upheld the program's fundamental goal of the states implementing pollution controls that would return parks and wilderness areas to “natural visibility” over 60 years.
But the ruling by the U.S. Court of Appeals for the District of Columbia Circuit said an EPA directive that states must require certain groups of polluters to use the “best available technology” to cut pollution undermines states' ability to decide how best to address the problem and is against the law.
At the same time, the judges rejected an industry petition asking the entire rule be scuttled.
A coalition of utilities and mining interests as well as the state of Michigan argued the EPA's goal of returning parks and wilderness areas to their “natural visibility” was arbitrary and unlawful.
But the court said the visibility goal “serves to assure the reasonable progress sought by Congress” when it passed the Clean Air Act requiring steps to reduce haze in national parks and wilderness areas. [Associated Press, 5/27/02]
FACT: The Finalized EPA Rule Has Been Upheld In Multiple Courts
The Haze Rule Was Finalized In 2005, Reflecting Changes Required By The 2002 Decision. On June 15, 2005, the EPA issued its final amendments to the haze rule, including modifications to the specific provision that the D.C. Circuit had required it to rework. The finalized rule allowed for greater state authority over methods used to meet the rule's requirements to reduce air pollution leading to reduced visibility in parks and wilderness areas. [Environmental Protection Agency, accessed 3/17/16]
The Finalized Haze Rule Has Since Been Upheld In Multiple Courts. The haze rule was contested in 2011 by Oklahoma Attorney General Scott Pruitt after the EPA rejected Oklahoma's state implementation plan and imposed a federal plan, but the 10th Circuit Court of Appeals ruled in the EPA's favor, and the U.S. Supreme Court subsequently refused to hear the case. The haze rule was later contested by the state of North Dakota, but the Court of Appeals for the 8th Circuit found in favor of the EPA. Again, the state attempted to challenge the ruling, but the appeal was rejected by the Supreme Court. And the 9th Circuit Court of Appeals upheld the EPA's regional haze plan for Arizona. [Media Matters, 3/17/16]
MYTH: Garland's Vote To Rehear A 2007 Case On D.C.'s Handgun Ban Reveals A “Very Liberal View On Gun Rights”
JCN's Severino: Garland's Vote To Rehear A Case On Handgun Restrictions Indicates “He Has A Very Liberal View On Gun Rights.” In a March 11 post at National Review's Bench Memos legal blog, the Judicial Crisis Network's Carrie Severino wrote that a vote Garland cast to rehear a 2007 case on Washington, D.C.'s handgun ban disproved Garland's reputation as a “moderate,” revealing his “very liberal view on gun rights” because he had agreed with Judge David Tatel, “one of the most liberal judges on the court.” She added that his vote signaled a desire to overturn Justice Antonin Scalia's opinion in the Second Amendment case D.C. v. Heller, which is current precedent for the constitutional scope of gun restrictions:
As the White House prepares to choose a nominee for the Supreme Court, they are continuing to suggest that they might nominate a supposed “moderate.”
But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia's most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one's own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the "[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights" in a previous case. Had Garland and Tatel won that vote, there's a good chance that the Supreme Court wouldn't have had a chance to protect the individual right to bear arms for several more years.
First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he's willing to uphold executive actions that violate the rights of gun owners. That's not so moderate, is it? [National Review, Bench Memos, 3/11/16]
National Rifle Association Promoted Severino's Smears To Assert Garland Is “Bad On Guns” And Would Overturn Key Legislation. The National Rifle Association (NRA) responded to Obama's formal nomination announcement on Twitter by promoting JCN's attack on Garland, claiming that Garland was “bad on guns” and that he “has a 'very liberal view' on gun rights,” as well as repeating JCN's baseless suggestion that Garland's record as a judge on the D.C. Circuit indicates that he would overturn the landmark Second Amendment case District of Columbia v. Heller:
It's official: President Obama's #SCOTUS nominee is bad on guns https://t.co/7j2G5W7GBQ #2A
-- NRA (@NRA) March 16, 2016
Merrick Garland's record “leads to the conclusion that he would vote to reverse...D.C. vs. Heller...” #2A #SCOTUS https://t.co/7j2G5W7GBQ
-- NRA (@NRA) March 16, 2016
Merrick Garland has a “very liberal view” of gun rights https://t.co/hbpdGfH5l3 #2A #SCOTUS
-- NRA (@NRA) March 16, 2016
CNN Lets Severino Peddle Claim That Garland Is “Hostile To” The Second Amendment. In an appearance on the March 16 edition of CNN's CNN Newsroom with Brooke Baldwin, Severino once again misrepresented Garland's record and argued that he was nominated because of “his decisions on things like the Second Amendment, which he's hostile to.” [Media Matters, 3/16/16]
Fox's Baier Falsely Claimed The Vote To Rehear Parker Amounted To “Oppos[ing] Justice Scalia's Take On The Second Amendment.” On 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, implying that Garland had voted to uphold the D.C. handgun ban later struck down in Heller (emphasis added):
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. [Fox News, Special Report With Bret Baier, via Media Matters, 3/16/16]
FACT: Voting To Rehear A Case En Banc Does Not Indicate How A Judge Would Rule In The Case
Constitutional Law Expert: “Impossible To Tell What Garland Meant By Voting To Rehear” The Parker Case. As constitutional law professor Joseph Blocher explained to guns news organization The Trace, a vote to rehear a case en banc can indicate a few different lines of reasoning, including deference to precedent, simple caution, or recognition that the case was particularly significant and ought to be heard by more judges. The Trace also noted that Garland had not participated in the original ruling in the Parker case:
But those who denounce Garland in the name of gun rights might be misreading that 2007 vote, which was in favor of allowing more judges on his court to review a decision made by a three-judge panel, says Joseph Blocher, a constitutional law professor at Duke University.
Rather than definitive evidence that Garland would like to curtail gun rights, the vote may simply be an indication that he is a jurist who is especially deferential to rulings made by previous courts, Blocher says.
“It is impossible to tell” what Garland meant by voting for rehearing, Blocher tells The Trace. “It may well be that he just wanted the whole court to weigh in on such a major decision. That would not be particularly unusual.”
Garland's vote came after a three judge panel on his court struck down D.C.'s handgun ban, ruling that it stripped residents of their right under the Second Amendment to own firearms. Prior to the ruling, just one court had affirmed the right of individuals to bear arms under the Second Amendment, in 2001, while many others had declined to stray from a long-held interpretation that the amendment referred specifically to the right of militias to own firearms.
When the D.C. Circuit, what some call the second-most important court in the nation, made what Garland surely knew was a huge and controversial ruling, Garland appears to have believed that it was important enough for a larger panel of judges to review the decision.
Such an expanded review is called an en banc rehearing, a common occurrence in appellate practice.
It is possible that Garland voted for en banc review in order to scuttle the earlier decision by his colleagues. It is also possible that he is simply cautious, not unlike some of the conservative jurists currently on the Supreme Court. Blocher also notes that Judge Raymond Randolph, an outspoken conservative judge on the D.C. Circuit at the same time, joined Garland in voting for a rehearing. [The Trace, 3/16/16]
Legal Scholars Told Media Matters Reading Anti-Gun Bias Into Garland's En Banc Vote Is A “Dangerous” Assumption. Legal scholars from Georgetown University Law Center; Duke University Law School; University of California, Berkeley, Law School; and University of Pennsylvania Law School stressed to Media Matters that a vote to rehear a case en banc should not be taken as evidence of how a judge would rule in the case:
“A vote to re-hear, or not to re-hear, by a judge who did not sit on the original panel, is a dangerous way to predict how that judge would vote,” [Georgetown University law professor Sherman L.] Cohn said via email. “Sometimes the vote to rehear is because the judge does not believe that the original, panel decision was strong enough or clear enough - and not because the judge disagrees. When I was a law clerk on that very court (1957-58), I saw that happen.”
Dan Farber, a law professor at the University of California, Berkeley, School of Law said, “All it really means is that he thought the case deserved consideration by the entire court, not just the three judges who heard it initially. He might have disagreed with it, or he may have thought that it conflicted with other precedents or rulings from other courts, or just that it was a very important issue.”
He added, “If they ever had a hearing, senators could ask him about this!” [Media Matters, 3/17/16]
Supreme Court And Legal Reporters Debunked En Banc Claims. Reporters covering courts and legal issues at The Washington Post, The New York Times, The San Francisco Chronicle, and Slate have all explained that Garland's vote to rehear the Parker (later Heller) case en banc did not indicate any particular view on the case itself, often noting that the Garland was joined in his support for rehearing the case en banc by a well-known conservative judge. The New York Times' Adam Liptak called the en banc vote “fairly thin evidence,” of anti-gun views, while The Chronicle's Bob Egelko noted that the 2007 vote was “in line with previous Supreme Court decisions” on the matter and outlined a possible procedural line of reasoning for the vote. Slate legal writer Mark Joseph Stern referred to “talking points from an anti-Garland activist,” JCN's Severino, as the source of misinformation on the en banc vote, and wrote that those arguing the vote indicated any sort of Second Amendment stance were engaged in “speculation” and “narrative-driven nonsense.” [Media Matters, 3/17/16]
Second Amendment Scholars Call Parker Claim “Specious And Dishonest.” In a letter to Senate Judiciary Committee leadership, a group of Second Amendment scholars with the American Constitution Society urged the Judiciary Committee to “fulfill its constitutional duty” by holding hearings and calling a vote on Garland's nomination. They explained that the attacks on Garland's guns record based on the misrepresentation of his en banc vote in the Parker case were “specious and dishonest” and part of the National Rifle Association's (NRA) “extraordinary misrepresentation of his record.” As the scholars wrote:
Senate Majority Leader Mitch McConnell and others have justified taking no action on Judge Garland's nomination based on serious misrepresentations of the Senate's constitutional obligations and a substantial distortion of Garland's record.
Senator McConnell recently stated that he “can't imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association.” For the United States Senate to outsource its constitutional advice-and-consent duty to any special interest group would set a dangerous precedent for future judicial nominations, and would pose a severe threat to our impartial judiciary. We are particularly troubled, in this case, because the N.R.A.'s stated reasons for opposing Judge Garland are based on an extraordinary misrepresentation of his record.
Any argument that a purely procedural vote reflecting no substantive judgment on the merits of the underlying case is proof that Judge Garland would vote to overturnHelleris specious and dishonest, and unworthy of acceptance by the Committee or the Senate as a whole.
The First Amendment may grant interest groups like the N.R.A. the right to distort the facts and attempt to mislead the public. Nothing in the Constitution justifies the Senate acceding to such misrepresentations. [American Constitution Society, 3/31/16]
FACT: Garland Was Joined By A Well-Known Conservative Judge, Among Others, In Voting To Rehear The Case
Garland Voted, Along With Three Other Judges, To Rehear A 2007 Case That Had Overturned D.C.'s Handgun Ban. In March 2007, a panel of three judges -- not including Garland -- issued a decision in Parker v. District of Columbia, overturning a lower court case to rule that D.C.'s ban on handgun ownership violated the Second Amendment. After the decision, Garland was one of four judges who voted to rehear the case en banc, a procedure in which the full court can reconsider the case and decide differently. In a 6-4 decision, the court declined to rehear the case en banc. [Media Matters, 3/14/16]
Well-Known Conservative Judge A. Raymond Randolph Also Voted To Rehear The Case. The four votes to rehear the Parker case also included one cast by Judge A. Raymond Randolph, a George H.W. Bush appointee to the D.C. Circuit and a well-known conservative. In fact, JCN -- then still operating under the name Judicial Confirmation Network -- promoted a discussion between Randolph and ultra-conservative jurist and rejected Supreme Court nominee Robert Bork months after Randolph joined Garland in voting to rehear Parker. [Media Matters, 3/14/16]
NY Times' Greenhouse Described Randolph As “One Of The Most Outspoken And Agenda-Driven Conservatives On The Entire Federal Bench.” In a 2014 opinion piece discussing a legal challenge to the Affordable Care Act, New York Times contributor Linda Greenhouse, whose work focuses on the Supreme Court and law, wrote of Judge Randolph:
Judge Randolph is one of the most outspoken and agenda-driven conservatives on the entire federal bench. In a speech to the far-right Heritage Foundation in 2010, for example, he denounced the Supreme Court for having granted habeas corpus rights to the Guantánamo detainees and compared the justices to Tom and Daisy Buchanan in “The Great Gatsby,” “careless people who smashed things up” and “let other people clean up the mess they made.” [The New York Times, 8/20/14]
MYTH: Garland Upheld D.C.'s Handgun Ban
JCN's “Topline Points” Opposing Garland Allege He Voted “To Uphold D.C.'s Very Restrictive Gun Restrictions.” Shortly after Obama's announcement to nominate Garland, JCN released “topline points” outlining its opposition to Garland, claiming that the nominee has “demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms,” including by “voting to uphold D.C.'s very restrictive gun restrictions”:
In multiple cases, Judge Garland has demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms, voting to uphold D.C.'s very restrictive gun restrictions, and siding with the federal government in its plan to retain Americans' personal information from background checks for firearm purchases. [ScotusBrief.org, 3/16/16]
Bill O'Reilly Repeats Bogus Claim That Garland “Voted...To Keep Guns Away From Private Citizens” In D.C. And Should Therefore Be “Disqualified” From The Supreme Court. During a March 16 discussion about Garland's nomination on Fox News' The O'Reilly Factor, host Bill O'Reilly repeatedly cited Garland's “vote to keep the guns away” from private citizens in D.C. to argue that Republicans will “disqualify” Garland:
BILL O'REILLY (HOST): He's not some crazy left-wing bomb thrower. But he voted, so the folks know, in Washington, D.C., to keep guns away from private citizens, and the Supreme Court of course said no, that is unconstitutional. But he voted to keep the guns away. Just that vote, and you must know this, alienates most in the Republican Party, so they never would vote to confirm him.
KIRSTEN POWERS: But that's not how it's supposed to work.
O'REILLY: I understand it's not supposed to work that way.
POWERS: It's supposed to be the president chooses somebody and then Congress has that person come before Congress and lets them -- you know, vets them and decides whether or not he's qualified.
O'REILLY: I'm just telling you it would all be a waste of time, that vote will disqualify him among Republicans. And you know it's a shame, because the guy has good votes on Guantanamo Bay, he has good votes on criminal justice. But, once you get into that, you know, advocacy position that guns have to be kept away --
POWERS: That's not an advocacy position--
O'REILLY: Sure it is. [Fox News, The O'Reilly Factor, 3/16/16]
FACT: Garland Did Not Participate In The Original 2007 D.C. Circuit Decision On The Handgun Ban.
Garland Did Not Participate In The Original Parker Ruling. In 2007, the D.C. Circuit Court -- where Garland is chief judge -- issued a ruling in the Parker v. District of Columbia case that challenged the constitutionality of Washington's ban on private handgun ownership. In the 2-1 decision, the D.C. Circuit reversed a lower court's decision that the D.C. ban was constitutional. Justice Laurence Silberman wrote the majority opinion and was joined by Justice Thomas B. Griffith in finding that D.C.'s gun law violated the Second Amendment. Justice Karen L. Henderson dissented. Garland did not participate in the decision. [Media Matters, 3/14/16, 3/16/16]
PolitiFact: Claim That Garland “Voted To Ban Citizens From Having Guns In DC” Is False. PolitiFact evaluated O'Reilly's March 16 claim that Garland had “voted ... to keep guns away from private citizens” in D.C and concluded the statement was false, outlining the difference between the original panel ruling -- in which Garland did not participate -- and the subsequent vote to rehear the Parker case en banc, which experts have noted does not indicate any particular ideology on the Second Amendment. PolitiFact concluded:
O'Reilly said Merrick Garland “voted, so the folks know, in Washington, D.C., to keep guns away from private citizens.”
Garland never heard the case about Washington gun laws from the bench, and so he never voted on it.
He voted in favor of reconsidering the case, but it's impossible to extrapolate from that vote his position on the merits of the case.
We rate O'Reilly's claim False. [PolitiFact, 3/18/16]
MYTH: Garland Upheld An “Illegal Clinton-Era Regulation” Creating A Gun Registry Requirement
In National Review, Severino Alleged Garland Voted “To Uphold An Illegal Clinton-Era Regulation That Created An Improvised Gun Registration Requirement.” Also in her March 11 post to National Review's Bench Memos legal blog, Severino argued that Garland had voted to “uphold an illegal Clinton-era regulation” and that Garland is “willing to uphold executive actions that violate the rights of gun owners”:
Moreover, in the case mentioned earlier, Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement. Congress prohibited federal gun registration mandates back in 1968, but as Kopel explained, the Clinton Administration had been “retaining for six months the records of lawful gun buyers from the National Instant Check System.” By storing these records, the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background check records for law abiding citizens.
Garland thought all of these regulations were legal, which tells us two things. First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he's willing to uphold executive actions that violate the rights of gun owners. That's not so moderate, is it? [National Review, Bench Memos, 3/11/16]
FACT: The Regulation Garland Ruled To Uphold Was Considered In Multiple Courts And Never Found “Illegal”
Majority Opinion In The NRA v. Reno Case, Which Garland Joined, Affirmed A Lower Court Ruling That The Regulation Was Lawful. The decision in the 2000 D.C. Circuit case National Rifle Association v. Reno found that, while the FBI's National Instant Criminal Background Check System (NICS) for gun purchases did temporarily retain data of gun owners for the purpose of audits, the practice was lawful and did not violate a federal prohibition on creating a registry of gun owners. Judge Tatel authored the 2-1 majority opinion, and was joined by Garland. Tatel wrote:
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. [National Rifle Association of America, Inc. v. Reno, U.S. Court of Appeals, D.C. Circuit, 7/11/00]
The NRA Appealed The Decision To The Supreme Court, And The Court Declined To Take Up The Case. Following the D.C. Circuit decision to affirm the legality of the FBI's background check system for gun purchases, the NRA appealed the case to the Supreme Court. The conservative-leaning court “without comment, turned aside the NRA's challenge,” as reported by the Associated Press. [Associated Press, 6/26/01]
Second Amendment Scholars Call Reno Claim “Misleading” And “Distorted.” In a letter to Senate Judiciary Committee leadership, a group of Second Amendment scholars with the American Constitution Society urged the Judiciary Committee to “fulfill its constitutional duty” by holding hearings and calling a vote on Garland's nomination and explained that the attacks on Garland's guns record based on his joining the opinion in the NRA v. Reno case “misleadingly characterized” Garland's ideology and were part of the NRA's “extraordinary misrepresentation of his record.” As the scholars wrote (emphasis added):
Similarly, Judge Garland's vote in National Rifle Association v. Reno is misleadingly characterized as further evidence of an anti-gun position and a desire to create a national gun registry. In that case, Judge Garland joined an opinion holding that the Department of Justice acted lawfully--and did not establish any gun registry--by temporarily retaining records on background checks performed pursuant to the Brady Act. The information the Department temporarily retained--which did not include “addresses of persons approved to buy firearms, nor any information on specific weapons, nor even whether approved gun purchasers actually completed a transaction”--enabled audits designed to ensure an accurate, secure, and private background check system. The information was destroyedwithin six months, in keeping with the Brady Act. When the N.R.A. appealed, the Bush Department of Justice, under John Ashcroft, defended the opinion Judge Garland joined, writing that "[t]he court of appeals' decision is correct."
The Supreme Court agreed, and declined to hear the N.R.A.'s appeal. But Judge Garland's critics have again distorted the record, portraying his vote inRenoas anti-gun and claiming it upheld, in the words of N.R.A. executive Chris Cox, “a federal registry of law-abiding gun owners.”
The First Amendment may grant interest groups like the N.R.A. the right to distort the facts and attempt to mislead the public. Nothing in the Constitution justifies the Senate acceding to such misrepresentations. [American Constitution Society, 3/31/16]
MYTH: Garland's Rose Garden Remarks Following His Nomination Were “Highly Unusual”
On Fox, Varney And Napolitano Agree: “Highly Unusual” For Nominee To Engage In “Public Lobbying” By Delivering Remarks. In a March 16 segment of Fox Business' Varney & Co. discussing the announcement of Garland's nomination to the court, host Stuart Varney and guest Andrew Napolitano agreed that the act of Garland delivering remarks after the president's announcement of his nomination at the White House was “extremely unusual” and “highly unusual,” and they asserted that the remarks seemed “like lobbying for the job:”
STUART VARNEY (HOST): You have just heard President Obama introduce his Supreme Court nominee Judge Merrick Garland and you heard Judge Merrick Garland himself. Judge Napolitano is with me now. I was surprised to hear Judge Merrick Garland say anything there. Forgive me, but it sounded to me a bit like he was lobbying for the job.
ANDREW NAPOLITANO: It did sound like he was lobbying. It sounded like an emotional plea for the propriety of his nomination. Obviously it was something the White House wrote or approved. It is highly unusual for the nominee, him or herself, to engage in any type of public lobbying and really should be reserved for behind the scenes with the members of the Senate.
VARNEY: That was unusual.
NAPOLITANO: Extremely unusual for a sitting judge who's regulated by what we call the canons of judicial ethics about what he or she may say in public and may not say in public. Highly unusual for this. I was quite surprised. We were kidding with each other, could you imagine Ronald Reagan calling Justice Scalia Antonin and saying, “OK, the microphone is yours.” A different era, a different president, different morals, different values, but this was most unusual what we just saw. [Fox Business Network, Varney & Co., 3/16/16]
Fox's Napolitano Also Implied Reagan Would Never Have Allowed A Nominee To Make Remarks. In the same March 16 segment of Varney & Co., Napolitano also that it would be difficult to “imagine” a nominee of President Ronald Reagan's -- such as the late Justice Scalia -- being allowed to take over a microphone:
ANDREW NAPOLITANO: Extremely unusual for a sitting judge who's regulated by what we call the canons of judicial ethics about what he or she may say in public and may not say in public. Highly unusual for this. I was quite surprised. We were kidding with each other, could you imagine Ronald Reagan calling Justice Scalia Antonin and saying, “OK, the microphone is yours.” A different era, a different president, different morals, different values, but this was most unusual what we just saw. [Fox Business Network, Varney & Co., 3/16/16]
FACT: Reagan, Bush, and Obama Nominees Have All Spoken Publicly After Being Nominated
Reagan Nominee Antonin Scalia Made Public Statements Following His Nomination. President Ronald Reagan nominated Justice William Rehnquist to the chief justice position and Antonin Scalia to an associate justice position on the Supreme Court. According to transcripts from the Reagan Library, Scalia answered questions from reporters following the announcement. [Reagan Library, via Media Matters, 6/17/86]
Reagan Nominee Anthony Kennedy Delivered Remarks After His Nomination. Reagan nominated Anthony Kennedy to serve on the court. A video of the nomination announcement also shows that Kennedy delivered remarks following his nomination. [YouTube.com, accessed 3/16/16]
George W. Bush Nominees Samuel Alito And John Roberts Also Delivered Remarks After Their Nomination Announcements. Archived footage from the Associated Press shows that both of President George W. Bush's nominees to the Supreme Court, Samuel Alito and John Roberts, delivered remarks following their nominations. [YouTube.com, accessed 3/16/16, 3/16/16]
Obama Nominees Sonia Sotomayor And Elena Kagan Delivered Similar Remarks Following Their Nominations. Both previous Obama nominees to the Supreme Court also delivered public remarks following their nominations. [YouTube.com, accessed 3/16/16, 3/16/16]
In Unprecedented Move, Conservatives Have Vowed To Oppose Any Nominee
MYTH: Refusing To Hold Hearings For President's Supreme Court Nominee Is Not Unusual
Senate Majority Leader Mitch McConnell (R-KY): SCOTUS Vacancy “Should Not Be Filled Until We Have A New President.” CBS News reported on February 13 that Senate Majority Leader Mitch McConnell expressed his intention to prevent the confirmation of any nominee before a new president takes office in 2017:
Senate Majority Leader Mitch McConnell, R-Kentucky, believes the U.S. Senate should wait 11 months for the next president to be sworn in before confirming a Supreme Court justice to replace the late Justice Antonin Scalia.
“The American people should have a voice in the selection of their next Supreme Court Justice,” the conservative leader said in a statement following the news of Scalia's death. “Therefore, this vacancy should not be filled until we have a new president.” [CBS News, 2/13/16]
Senate Republican Leadership Has Expressed Its Intention Not To Hold Hearings For Any Nominee. Politico reported on February 23, “Senate Republicans will deny hearings to a Supreme Court nominee from President Barack Obama and Senate Majority Leader Mitch McConnell said he's not inclined to even meet with whomever the president picks for the job.” [Politico, 2/23/16]
Initial Reporting On Republican Obstructionism Downplayed Unprecedented Nature Or Ignored It Outright. Initial reporting the week following Scalia's death failed to emphasize the lack of precedent for the GOP leadership's claims and strategy surrounding the vacancy. For example, one February 16 New York Times article noted that the Obama administration and Democrats in Congress were merely “portraying” the GOP's actions as unprecedented, even though the historical record shows that charges of Republicans' unprecedented obstructionism are based in fact. The Times also presented Democrats and Republicans as equally blameworthy for judicial nominee obstruction, suggesting that Obama was somehow contributing to the battle. Right-wing outlets like The Washington Times misrepresented the nature of McConnell's threats -- suggesting he simply refused to confirm, not that he refused to even hold hearings -- to falsely argue, “Republicans have the Constitution, history, pragmatism and democracy on their side. Obama and the Democrats have only chutzpah.” [Media Matters, 2/18/16; Media Matters, 2/16/16]
FACT: Historically, The Senate Has At Least Considered Presidential Nominees, Even In An Election Year
The Senate Has Considered Every Nominee Since 1875. Explaining modern precedents surrounding Supreme Court nomination and confirmation norms, the White House noted on its website that “since 1875, every nominee has received a hearing or a vote”:
Every nominee has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year -- more than 300 days -- to consider and confirm a nominee. [WhiteHouse.gov, accessed 2/29/16]
The Modern Confirmation Process Undoubtedly Involves Public Hearings And Consideration By The Senate. According to the Congressional Research Service (CRS), of more than 40 Supreme Court nominations made since the Senate Judiciary Committee began the practice of holding public hearings to question nominees in 1939, every nominee that was not withdrawn by the president received a public hearing or vote by the full Senate. Justices James Byrnes and Harold Burton were confirmed by the Senate without holding public hearings in 1941 and 1945, respectively. No Judiciary Committee action was taken on initial nominations of Justices John Harlan II and John Roberts, but both were re-nominated in short order, given public hearings, and confirmed by the Senate. In 2005, President George W. Bush withdrew his nomination of Harriet Miers before hearings could be held. In every other case, the nominee received one or more public hearings in the Judiciary Committee. [Supreme Court Nominations, 1789 - 2009: Actions by the Senate, the Judiciary Committee, and the President, Congressional Research Service, 5/13/2009]
Throughout U.S. History, The Full Senate Has Nearly Always Voted On The Nominee. According to a historical survey of the nomination process -- covering both the modern public hearing process and different Senate norms that preceded the modern process -- 149 of 160 nominations to the Supreme Court in U.S. history have been confirmed or rejected after receiving consideration by the full Senate:
Throughout the nation's history, there have been 160 nominations to the Supreme Court. Of these, 123 nominations received Senate confirmation, and 26 nominations were rejected by the Senate. The remaining nominations were either withdrawn by the president or never considered by the Senate. Thus, statistically speaking, presidents are quite successful in obtaining Senate support for their nominees: more than 75% of presidential nominations gained Senate approval. [Supreme Court Confirmation Hearings and Constitutional Change, Kindle Locations 670-674, 2013]
Since 1900, Six Supreme Court Vacancies Have Been Filled During Election Years. According to SCOTUSblog, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.” SCOTUSblog listed six instances where vacancies were filled during election years, and also explained two cases since 1900 where “presidents were not able to nominate and confirm a successor during an election year” by describing how neither case “reflects a practice of leaving a seat open on the Supreme Court until after the election”:
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.
On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956. With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957. The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.
And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but the Fortas nomination was the target of a bipartisan filibuster -- principally in reaction to the Warren Court's liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year. That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench. [SCOTUSblog, 2/13/16]
PolitiFact: McConnell's Argument That Refusal To Fill Vacancy “Follow[s] A Longstanding Tradition” Is “Misleading” And “Not Accurate.” PolitiFact concluded that a March 20 statement by McConnell that Senate Republicans are “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year” was “misleading” and “false.” The fact-checking site noted that there is limited precedent for a Supreme Court nomination during an election year, and that the Senate “has chosen not to fill a Supreme Court seat that opens up during an election year just once in the past 100 years.” [PolitiFact, 3/22/16]
MYTH: Republicans Opposed Obama Nominees For Legitimate Reasons
Fox News Repeated False Claim By “Critics” That Cornelia Pillard Would Be The Most Far-Left Judge In U.S. History. In the July 24 edition of Fox's America Live, Fox News' Shannon Bream credulously repeated baseless criticism of judicial nominee Cornelia “Nina” Pillard, calling her “controversial” and claiming that “critics” of Pillard were “describing her as potentially the most left-leaning justice or judge in the history of the Republic.” [Fox News, America Live, 7/24/13]
National Review Repeatedly Smeared Pillard By Mischaracterizing Her Mainstream Writings On Gender Equality Laws. [Media Matters, 7/19/13; Media Matters, 9/6/13; Media Matters, 9/19/13]
Fox News Reported On Pillard By Parroting Critics Who Baselessly Called Her A “Radical Feminist.” In a November 25 segment on America's Newsroom, Bream reported on the right-wing criticism of Pillard, namely the baseless charge that she is a “radical feminist”:
[Fox News, America's Newsroom, 11/25/13]
FACT: Senate Republicans Routinely Obstruct Noncontroversial, Qualified Nominees
Republicans Held Up Three Highly Qualified Nominees To Fill Vacancies On The U.S. Court Of Appeals For The D.C. Circuit. Prior to Sen. Harry Reid's reform of filibuster rules in November 2013 to counteract Republican senators' unprecedented obstructionism of judicial nominees, Senate Republicans held up the nominations of Patricia Millett, Robert Wilkins, and Cornelia Pillard to the D.C. Circuit Court, even though they all were highly qualified. The Huffington Post noted that Republicans “readily admit ... they don't really have a problem with any of Obama's picks for the D.C. Circuit,” which is considered the second most important court in the nation, but “just don't want [Obama] to fill its three vacancies”:
Senate Republicans filibustered another one of President Barack Obama's nominees on ... Nina Pillard, a Georgetown University law professor and a noncontroversial nominee to the D.C. Circuit Court of Appeals.
Republicans readily admit their opposition to Pillard isn't about her. In fact, they don't really have a problem with any of Obama's picks for the D.C. Circuit, the second most powerful court in the nation. They just don't want him to fill its three vacancies. Many of them say the court isn't busy enough to warrant filling its empty seats; others make the counterintuitive argument that Obama is “court-packing” by filling routine vacancies. But both of those arguments gloss over the fact that the president, any president, has a constitutional duty to fill empty court seats, and barring extraordinary circumstances, the Senate is supposed to give nominees a vote.
Pillard's filibuster is the latest example of how the Senate isn't holding to that standard anymore. Not only is she the third noncontroversial nominee that Republicans have filibustered in the last two weeks, but she is now the 20th Obama nominee who is either currently being blocked or was blocked and ultimately withdrew from the process. Those blockages cause a logjam that reverberates through the judiciary and the executive branch, as positions have gone unfilled at crisis levels dating back to 2007.
The Huffington Post crunched some data and found that, as of Tuesday, 13 judicial nominees have been returned to Obama and were not renominated or withdrew their nominations, four judicial nominees aren't moving because GOP senators won't let them advance in the Senate Judiciary Committee, and three other nominees (two judicial, one executive) were recently filibustered for reasons that had nothing to do with their qualifications. [Huffington Post, 11/13/13]
The American Bar Association Unanimously Rated Pillard, Wilkins, And Millet Well-Qualified For The D.C. Circuit Court. Among judicial nominees rated by the American Bar Association (ABA) for the 133th Congress, Pillard, Wilkins, and Millet all received the highest possible rating. [American Bar Association, 2/6/14]
Victoria Nourse's Unsuccessful Judicial Nomination Held Up By Republicans For 19 Months. University of Wisconsin law professor Victoria Nourse asked President Obama to withdraw her nomination to the U.S. Court of Appeals for the Seventh Circuit in January 2012 after it had been blocked by Republicans since July 2010, without regard to her legal expertise. In a statement, Nourse mentioned she had worked for both a Democratic and a Republican president, writing, “I have nothing else to say at this time, except to refer you to the letter sent by legal experts across the nation, among them many conservatives, supporting my nomination and objecting to the procedure that has been used to block it. To quote Chief Justice Roberts, 'the system is broken.'” [Journal Sentinel, 1/19/12]
The American Bar Association Gave Nourse A Unanimous Well-Qualified Rating. [American Bar Association, accessed 2/29/16]
Fifty-Three Legal Academics, Including Conservatives, Called For Nourse To Receive A “Prompt Vote,” Noting That She Was Well-Qualified And Noncontroversial. A July 2011 letter signed by dozens of legal academics noted that “there has been no public opposition to [Nourse's] nomination,” and argued that “this delay raises serious questions about whether the Senate is fulfilling its constitutional role to provide the President's nominees with a prompt hearing and full Senate vote” (emphasis original):
We urge you to hold a Senate Judiciary Committee hearing and seek a prompt vote for Seventh Circuit nominee Victoria F. Nourse.
Since her nomination, there has been no public opposition to her nomination. Yet, almost two years since the seat became vacant, and eighteen months since the Wisconsin nominating commission recommended her for the announced vacancy, Professor Nourse has yet to receive a hearing or a vote. Purely as a matter of process, this delay raises serious questions about whether the Senate is fulfilling its constitutional role to provide the President's nominees with a prompt hearing and full Senate vote.
A nominee of sterling credentials, who has served her country under Republicans and Democrats, who was approved by a state merit commission, and praised by the A.B.A., should not be subject to unending delay. For a single Senator from one state within the Circuit to assert a hold, months after the nomination was complete, undermines Wisconsin's merit-based selection system, blocking highly qualified nominees from a hearing and a vote. This hold is being justified under the Senatorial convention known as a “blue slip.” In this case, there has been no substantive reason asserted for the blue slip based on the nominee's qualifications. A hold without reason is an arbitrary Senatorial process, for any nominee of any party. It allows one Senator the ability to bar a hearing and a vote on a nominee with broad based support. The effect is an unbreakable one-person-filibuster. The rights of a Senatorial minority are not at issue (even if the objection were withdrawn, filibuster by a minority of Senators remains a procedural possibility); the only question is the right of a single Senator to retroactively assert this privilege to block a highly qualified nominee from even a hearing. [Letter to the Senate Judiciary Committee, 7/14/11; Milwaukee-Wisconsin Journal Sentinel, 7/18/11]
MYTH: Making Nominations To Fill Routine Court Vacancies Is The Same As “Court-Packing”
Washington Examiner Described Obama's Plan To Nominate Scalia Replacement As “Court Packing.” A February 16 editorial published by the Washington Examiner used the term “court packing” to describe Obama's plan to name a nominee. The editorial urged Republicans not to confirm any Obama nominee. [Washington Examiner, 2/16/16]
Judicial Crisis Network Policy Director: Obama May Try To “Pack The Court” By Replacing Scalia. Carrie Severino, who serves as chief counsel and policy director at the conservative Judicial Crisis Network organization, told The Washington Post in response to the current Supreme Court vacancy that “if the president tries to pack the court, as it is apparent he may, then JCN will be leading the charge to delay a Senate vote until the American people decide the next president.” [The Washington Post, 2/15/16]
To read more about the Judicial Crisis Network -- called the Judicial Confirmation Network during the Bush years -- and why the media should not treat them seriously, click here.
In 2013, Conservative Media Repeatedly Referred To Obama's Plan To Fill Three D.C. Circuit Vacancies As “Court-Packing.” [Media Matters, 12/11/13; Media Matters, 5/24/13]
FACT: Term “Court-Packing” Refers To A President's Attempt To Increase The Number Of Seats On A Court, Not Fill A Vacancy
MSNBC's Steve Benen: What Conservatives Now Call “Court Packing” Is Actually “Basic American Governance.” Rachel Maddow Show producer Steve Benen explained in a November 2013 blog post that it was inaccurate to call Obama's plan to fill D.C. Circuit vacancies a “court-packing” scheme because the term actually refers to “an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president's favor”:
Dylan Matthews noted yesterday that Grassley believes rascally Democrats and the Obama administration are trying to “pack the court” through a “court-packing” scheme. Grassley was reading carefully from a prepared text, suggesting the Iowa Republican was quite serious about the argument - he repeated it five times.
It fell to Sen. Sheldon Whitehouse (D-R.I.), Grassley's colleague on the Senate Judiciary Committee, to gently explain that Grassley has no idea what he's talking about. “Court packing” was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president's favor. The idea was floated in the 1930s, but not seriously pursued.
What we're talking about in 2013 is very different. There's a vacancy on the federal bench; the president chooses a nominee to fill that vacancy; the Senate Judiciary Committee scrutinizes that nominee and sends him or her to the floor; and then the Senate's full membership has an opportunity to vote “yea” or “nay” on confirmation.
Chuck Grassley sees this as some kind of underhanded Democratic scheme. The rest of us should consider it basic American governance.
Postscript: I should note that if Senate Republicans reclaim the majority after the 2014 midterms, Grassley would become chairman of the Senate Judiciary Committee, despite his apparent confusion on these issues. [MSNBC.com, 11/7/13]
PolitiFact: “The Claim That Obama Is 'Packing' The D.C. Circuit Court Largely Runs Counter To American Legal And Political History.” [PolitiFact, 6/5/13]
MYTH: Republicans And Democrats Are Equal-Opportunity Obstructionists When It Comes To Presidential Nominees
Wall Street Journal Editorial Board: Obama-Era Judicial Nominee Obstruction Comparable To Democratic Obstruction Under President George W. Bush. Arguing that “Presidents deserve up-or-down votes on judicial nominees,” The Wall Street Journal's editorial board claimed in 2013 that “Republicans are merely following the filibuster precedent that Democrats set when George W. Bush was President”:
President Obama denounced “the Republican pattern of obstruction,” but Republicans are merely following the filibuster precedent that Democrats set when George W. Bush was President. Turnabout is unfair play.
Presidents deserve up-or-down votes on judicial nominees, and our politics would be healthier if the Senate went back to that standard. But we warned Democrats in 2002 about the filibuster precedent they were setting against [previous GOP judicial nominee Miguel] Estrada. Now they're reaping the consequences. [The Wall Street Journal, 3/11/13]
Fox News Media Critic Howard Kurtz: Republicans And Democrats “Play The Same Game” On Blocking Presidential Nominees. In a November 22, 2013, column following Sen. Harry Reid's reform of filibuster options, Kurtz falsely equated how presidential nominees have been treated under Obama to the approach under Bush:
The reason this story makes me roll my eyes is that both parties play the same game. When they're in the minority, as the Democrats were during the Bush administration, they stall, block and filibuster the other party's nominees and try to wrap it in some kind of principle. When they're in the majority, they wail and moan about obstructionist behavior by a ruthless opposition determined to cripple the president. It's Beltway hypocrisy at its finest.
It was striking that Obama (who spoke in favor of the filibuster as a senator) came out into the briefing room to praise the move by Harry Reid and beat up on the Republicans for “repeated abuse of these tactics” (though he allowed that “neither party has been blameless for these tactics”). He said about 20 nominees were filibustered in the few decades before he took office, while almost 30 have suffered that fate during his administration (that includes several recent judicial nominees).
Oddly, the president used his turn at the mike to blame the Republicans for blocking efforts to create jobs, equal pay for women, immigration and gun control -- though none of those issues are affected by a vote that was strictly about presidential nominations, except to the Supreme Court. [FoxNews.com, 11/22/13]
FACT: Obama-Era Obstruction By Republicans Was Unprecedented
Wash. Post: Filibuster Abuse Is Unprecedented And “Half Of All Filibusters Of Executive-Branch Nominees Have Occurred Under President Obama.” The Washington Post's James Downie pointed out that during the Obama administration, the GOP has turned the filibuster “from a rarity to an oft-used tool for nullification and unprecedented obstruction”:
Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.
Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed -- the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn't like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama's judicial appointees -- a power the Constitution actually mentions, unlike the filibuster -- for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)
[The GOP] could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn't.
So Republicans decrying filibuster reform as “dictatorial” or “a day to be sad” or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame. [The Washington Post, 11/21/13]
PolitiFact: Republican Blocking Of Obama Nominees Is “Disproportionate By Historical Standards.” After Reid triggered the “nuclear option,” PolitiFact noted that “by our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama's term”:
This matters because some of the nominations resulted in multiple cloture efforts. By our calculation, there were actually 68 individual nominees blocked prior to Obama taking office and 79 (so far) during Obama's term, for a total of 147.
Reid's point is actually a bit stronger using these these revised numbers. Using these figures, blockages under Obama actually accounted for more than half of the total, not less then half. Either way, it's disproportionate by historical standards.
Indeed, when we presented this finding to Reid's office, they agreed and released an updated version of the graphic. It now reads, “In the history of the United States, there have been 168 filibusters of presidential nominees, 82 filibusters under President Obama, 86 filibusters under all other presidents.”
“Point well taken on the number,” Reid spokesman Adam Jentleson told PolitiFact. “We have actually been careful to specify that 168 is the number of times a nominee was blocked in our materials. The miswording was unintentional. I don't think the point is any less strong when it is worded as 'times' versus 'nominees.'” [PolitiFact, 11/22/13]
Slate: Bush's Extreme Nominees Still Have “Staggering” Effect On Judiciary. Though it is true that Senate Democrats opposed some of Bush's nominees during his presidency, the use of the filibuster was generally limited to right-wing nominees who were out of the legal mainstream and who were pushed through the confirmation process aggressively:
If Priscilla Owen and Janice Rogers Brown sound familiar to you, that's because they were the two Bush judicial nominees at the center of the Great Filibuster Showdown of 2005. In May 2001, just after taking office, Bush introduced 11 nominees for vacancies on the federal appellate courts. He was signaling his intention to reshape the federal judiciary, and his willingness to fight for his nominees, right down to the bloody end. Because that's what his base demanded. Democrats blocked some of those appointments. Bush stuck to his guns. In 2004, immediately following his re-election and emboldened by Republican gains in the Senate, he pushed forward a list of judges he planned to renominate, despite what he characterized as years of Democratic obstruction. Both Owen and Brown were on that list. And as Charlie Savage detailed at considerable length in 2008, the effect of the Bush nominations on the federal judiciary was staggering. It still is.
Obama cared enough about the Supreme Court to push for his two nominees, Elena Kagan and Sonia Sotomayor. But with a handful of notable exceptions, the president has not made bold choices for the appeals courts. And when his nominees have met obstruction in the Senate, he has rarely fought for them. Last summer, when he tapped Millett, Obama signaled that he was ready to take a bigger stand by presenting her as part of a package of three D.C. Circuit choices. Now it's time for him to come through. If he needed any more reminders of the power of the bench -- a power that endures for decades after a presidency has ended -- [recent anti-reproductive rights decisions by] Owen and Brown just gave it to him. In a double dose. [Slate, 11/1/13]
MYTH: Republicans' Unprecedented Obstructionism Does Not Have Negative Consequences
Conservative Media Argued That There Was No Urgency To Fill Critical Vacancies On The D.C. Circuit Court. During ongoing Republican obstructionism against three qualified, noncontroversial Obama nominees, conservative media figures misled about the nature of the D.C. Circuit Court's caseload to argue that there was no pressing need to fill the vacancies. [Media Matters, 10/30/13; Media Matters, 9/6/13]
FACT: Vacancies Created By Republicans' Judicial Nominee Obstructionism Make Federal Court System Less Efficient And Less Capable Of Addressing Americans' Concerns
Center For American Progress: “Millions Of Americans Are Being Denied Access To Justice.” The Center for American Progress explained that “the number of judicial emergencies ... nearly tripled” in 2015 following “the worst obstruction of judicial nominations in more than half a century”:
In 2015, the U.S. Senate has confirmed just 11 federal judges to the bench, and the number of judicial emergencies has nearly tripled. As the graphic below shows, this is the worst obstruction of judicial nominations in more than half a century. As a result, millions of Americans are being denied access to justice.
[Center for American Progress, 2/23/16]
The U.S. Judicial Conference Has Declared 31 Current “Judicial Emergencies.” “Judicial emergencies” are declared on the basis of federal courts' respective caseloads and how long vacant positions have remained unfilled. [United States Courts, accessed 2/29/16; United States Courts, accessed 2/29/16]
People For The American Way: Federal Court Vacancies Create Delays For Civil Cases That Hurt “Real People.” A 2012 report from the People for the American Way (PFAW) noted that “court delays damage small businesses, whether they are seeking to vindicate their rights as plaintiffs or to put a lawsuit behind them,” and cause “long delays for Americans seeking justice in cases involving discrimination, civil rights, predatory lending practices, consumer fraud, immigrant rights” and other areas. [People For the American Way, 2012]
Constitutional Accountability Center: “When The Supreme Court Has A Vacancy, It Simply Cannot Function As It Is Supposed To.” Brianne J. Gorod, chief counsel for the Constitutional Accountability Center, wrote that the “practical result” of Republicans' refusal to consider the president's eventual nominee to the Supreme Court would be “simple and harmful.” With an eight-person court, many important cases would face the increased risk of deadlocking 4-4, leaving lower court decisions in place and different laws regulating different places. “For individuals, these different rules may be unjust and confusing. For businesses, these different rules may make it exceedingly difficult to operate in multiple parts of the country,” Gorod wrote, an outcome that “undermines the rule of law and is undeniably bad for the country, whatever one's ideology”:
The consequences of the Supreme Court being without all nine justices for so long can hardly be overstated. Most significant, a long-standing vacancy would compromise the Court's ability to perform one of its most important functions, that is, establishing a uniform rule of law for the entire country. In the rule governing how the Supreme Court decides which cases to hear, the first two (of three) considerations provide that the Court should review a case when there are conflicting decisions among the courts below. Justice Scalia himself once told the Senate Judiciary Committee that his colleagues on the Court are guided by these questions in deciding whether to hear a case: “Is there a circuit conflict? Is this a significant issue on which the lower courts are divided? ... [I]f there's no disagreement below, we don't get involved.” By hearing cases in which lower courts are divided, the Court can settle the dispute and establish one rule of law to govern the entire nation.
But there will be many cases in which the Court cannot do that when it has only eight members. There's no question that on this sharply divided Court, the potential for 4-4 decisions will be strong. When that happens, the Court cannot resolve these conflicts because it cannot establish a precedential decision. When the Court decides a case 4-4, the ruling of the court below is affirmed, but there is no binding decision of the Supreme Court that governs the rest of the nation. As a result, vital questions about our nation's laws and the Constitution will be left unanswered. Sometimes these questions may be in high profile cases touching on such issues as the environment or religion; other times they may be in cases that don't normally get much attention, but are nonetheless important (for example, cases involving whether individuals can sue in court when their rights under federal law are violated).
The practical result is simple and harmful: people will be subjected to different rules in different parts of the country. For individuals, these different rules may be unjust and confusing. For businesses, these different rules may make it exceedingly difficult to operate in multiple parts of the country. And, again, if some Republicans have their way, the Court will be unable to resolve these conflicts for at least the majority of two of its Terms. That result undermines the rule of law and is undeniably bad for the country, whatever one's ideology. It is, in short, simply unacceptable. [Constitutional Accountability Center, 2/16/16]