The Wall Street Journal editorial board is calling for the Senate to “refus[e] to hold hearings” on Judge Merrick Garland, President Obama's nominee to the Supreme Court, warning that Garland's record “demonstrates a reliable vote for progressive causes.”
To make its case, The Journal repeatedly pointed to misleading claims that have been pushed by the Judicial Crisis Network (JCN), the discredited right-wing legal group leading the opposition against Garland's nomination. Following the March 16 nomination announcement, JCN released a series of “topline points” purporting to reveal Garland's leftist ideology, and it appears The Journal may have been reading from the same flimsy playbook.
Here's how the statements from JCN and The Wall Street Journal match up:
- To illustrate Garland's supposed “hostility toward the Second Amendment right to keep and bear arms,” JCN cited SCOTUSBlog's Tom Goldstein saying: “Garland also notably voted in favor of en banc review of the D.C. Circuit's decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed.”
- To purport that Garland's tenure indicates a “progressive” view on the Second Amendment, The Journal wrote: “In 2007 Judge Garland voted for a rehearing en banc after a three-judge panel invalidated Washington D.C's handgun ban.”
In reality, Garland was joined by a well-known conservative judge, among others, in voting to rehear the case, and voting to rehear a case does not mean that a judge is committing to deciding it one way or the other nor does it reveal their constitutional thinking or ideology.
- JCN also contended that Garland had sided “with the federal government in its plan to retain Americans' personal information from background checks for firearm purchases.”
- The Journal similarly wrote: “In 2000 Judge Garland was part of a three-judge panel that allowed the FBI to temporarily keep files with information from gun purchase background checks.”
In reality, this rule, which is not related to the Second Amendment, was considered in multiple courts and was always found to be in compliance with the Brady Handgun Violence Prevention Act. The Associated Press reported that the conservative-leaning Supreme Court “without comment, turned aside” a challenge to the law.
- JCN claimed in its “topline points” that Garland “was the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation (the 'Haze Rule').”
- The Journal wrote: “In an especially notable case, Judge Garland dissented when the D.C. Circuit struck down the EPA's egregious regional haze rules (American Corn Growers v. EPA, 2002).”
In reality, the other two judges on the court agreed with Garland that the Environmental Protection Agency (EPA) is required to work with states to reduce haze pollution under the Clean Air Act; they just ruled against the EPA's specific approach to achieving those reductions. And a revised version of the regional haze rule is now in place and has been repeatedly upheld in other courts.
The Journal editorial concluded:
Senate Republicans have staked out the principle that voters should have a say in the next Supreme Court nomination via their presidential choice. The Senate should spare Judge Garland from personal attack by refusing to hold hearings.
But if GOP Senators up for re-election want to be more conciliatory, they could say they regard Judge Garland as a suitable choice for a Democratic President and would be happy to vote for him in a lame-duck session--if Mrs. Clinton wins the election. That would be standing on principle and calling Mr. Obama's bluff.