In an election year in which three of the four main presidential contenders from the two political parties at least purport to be running against the Washington establishment, President Obama has nominated a quintessential political establishment judge for the Supreme Court.
Judge Merrick Garland is not the radical judicial activist many conservatives thought President Obama might nominate in his lame duck days as a parting and lasting shot to fulfill his contra-constitutional transformation of America. The nomination of Judge Garland is instead a cleverer and subtler attempt to advance the progressive agenda that relies on the extra-constitutional administrative political class now governing and deeply infiltrating American private life, property rights, business, education and even religious beliefs from Washington.
A Bill Clinton appointee to the D.C. Circuit Court, Judge Garland has the impressive credentials to woo and perhaps seduce many establishment Republicans in the Senate for confirmation. A Harvard Law School graduate who clerked for liberal Justice William Brennan, he was an Assistant U.S. Attorney and later a Deputy Assistant Attorney General in the Criminal Division at the Department of Justice. When he was not working in government, he taught law at Harvard, and did a stint at the consummate Washington law firm Arnold & Porter. He is the judicial gold standard for the Washington establishment.
Judge Garland would not fit what New York Times Supreme Court journalist Adam Liptak recently noted about what the late Justice Antonin Scalia may have hinted in his dissent in the 2015 gay marriage case about his successor for a more diverse Supreme Court: One not from Harvard or Yale, and not with the “predominant attitude of tall-building lawyers with respect to the questions presented in these cases.”
Judge Garland is being praised by establishment liberals as a “popular centrist.” This means to imply he is someone who claims no hard ideology while in fact having one, or what I call a “mid-eologue.”
Through the lenses of many on the left, especially those in the media, a conservative jurist is one who sides more frequently with corporations and the police – regardless of the process by which they reached their outcomes. The fact that former prosecutor Judge Garland has been known to side with the police, although frequently ruling against corporations, makes him a centrist in the eyes of the results-oriented liberal press.
This “centrist” label helps mask the rigidly statist nature of Judge Garland’s judicial philosophy. Even in praise of Garland’s nomination, liberal constitutional law professor Jeffrey Rosen writes:
“Garland’s career has been defined by deference to decisions by administrative agencies. During oral arguments in Americans for Safe Access v. DEA, Garland asked, ‘Don’t we have to defer to the agency? We’re not scientists. They are.’”
Under the statist approach of progressives, the constitutional rule of law has been transplanted by the rule of government “experts,” i.e., unelected bureaucrats within the alphabet-soup named administrative agencies, whose mistakes, corruption and lawlessness are more-and-more front page news, at least in the conservative media.
These “experts” are part of the progressive transformation of American government that began long before Barack Obama was elected president. They are the hallmark of the Washington political establishment whose motto seems to be, “Let our bureaucrats decide.” Mr. Obama has attempted to take this transformation a few steps further through an executive branch that is more completely detached from the Constitution and its legal chains on government.
Judge Garland’s deference to administrative agencies was on display in his 2009 dissent in FedEx Home Delivery v. National Labor Relations Board, a case about whether drivers were independent contractors or employees subject to unionization. The corporation – represented by Ted Cruz – won, and the government lost despite having “home court advantage” in the D.C. Circuit and support of an amicus brief filed by the Teamsters.
In dissent, Judge Garland wrote, “Until the Supreme Court or the [NLRB] tells us differently, we must continue to apply the multi-factor test set forth by the Supreme Court and applied by the [NLRB].” Courts’ deferring to a superior court is sound jurisprudence. Judges believing they are bound by the policies of unelected bureaucrats, however, is a chilling degradation of the constitutional rule of law over government.
Judge Garland is not to blame for developing this rigid statist ideology among judges known as the Chevron doctrine. It is based in the1984 opinion by liberal Justice John Paul Stevens in Chevron, U.S.A., Inc. v. Natural Resources Defense Council. Critics of this doctrine, whose ranks are growing thanks in part to the Federalist Society and the Heritage Foundation, believe it creates “an unaccountable fourth branch of government” that James Madison would have described as the “very definition of tyranny” for exercising the three fundamental powers of government in one body when they were intended to be exercised separately.
The administrative state is “Liberty’s Nemesis” according to various scholars, and the legality of its expansion is shredded by Columbia Law Professor Philip Hamburger in a superbly written book, Is Administrative Law Unlawful?
While liberals characterize judges who side with corporations and law enforcement as ideologically conservative, pro-government judges would seem every bit as ideological. Judge Garland is a fine and brilliant man by all accounts. His nomination, when Americans increasingly view government as corrupt and trust in the courts is at or near record lows, nevertheless underscores the agenda of President Obama. How the Senate responds will tell us a lot about whether they understand why so many Americans are fed up with the political class.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."