Conservative columnist George Will dismissed the varying excuses Republican senators have made to justify their refusal to consider President Obama's nomination of Judge Merrick Garland to the Supreme Court as “radiating insincerity.”
Leading up to and following President Obama's March 16 Supreme Court nomination of Garland, the chief judge of the United States Court of Appeals for the District of Columbia, Republican lawmakers have said they would refuse to consider any nominee, despite it being an unprecedented action. Republican lawmakers, echoed by some of the media, have misleadingly cited past actions and comments by President Obama and Vice President Biden as justification for their obstruction.
In his March 18 Washington Post column, Will blasted the Republicans' justifications for refusing to consider Garland, writing that their “incoherent response” is “a partisan reflex in search of a justifying principle.” Will added that the “multiplicity of Republican rationalizations for their refusal to even consider Merrick B. Garland radiates insincerity”:
The Republican Party's incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick B. Garland radiates insincerity.
Republicans instantly responded to Antonin Scalia's death by proclaiming that no nominee, however admirable in temperament, intellect and experience, would be accorded a hearing. They say their obduracy is right:
Because they have a right to be obdurate, there being no explicit constitutional proscription against this.
Or because President Obama's demonstrated contempt for the Constitution's explicit text and for implicit constitutional manners justifies Republicans reciprocating with contempt for his Supreme Court choice, regardless of its merits.
Or because, 24 years ago, then-Sen. Joe Biden -- he is not often cited by Republicans seeking validation -- suggested that a president's right to nominate judges somehow expires, or becomes attenuated, in a “political season,” sometime after the midterm elections during a second presidential term.
Or because if a Republican president tried to fill a court vacancy during his eighth year, Democrats would behave the way Republicans are behaving.
In their tossed salad of situational ethics, the Republicans' most contradictory and least conservative self-justification is: The court's supposedly fragile legitimacy is endangered unless the electorate speaks before a vacancy is filled. The preposterous premise is that the court will be “politicized” unless vacancies are left vacant until a political campaign registers public opinion about, say, “Chevron deference.”
This legal doctrine actually is germane to Garland. He is the most important member (chief judge) of the nation's second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached -- “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.
In his record of deference, Garland resembles two justices nominated by presidents George W. Bush and Ronald Reagan, respectively -- Chief Justice John G. Roberts Jr. and, even more, Scalia, who seems to be more revered than read by many conservatives. Garland's reluctance to restrict the administrative state's discretion would represent continuity in the chair he would fill.