Merrick Garland and the Futility of Politics

Ever since the death of Justice Antonin Scalia, the question of whom President Obama would choose to replace him has been — along with the possibility of Republican Congressional obstruction of a confirmation vote — a central issue in national politics. Liberal and Progressive activist groups have organized pressure campaigns to make the GOP-majority Congress “do its job” and act on confirmation. Meanwhile, the fear that a Republican President might have the chance to fill one or more Supreme Court seats with conservatives who could serve for decades has been one of the main arguments Hillary Clinton’s supporters have used to persuade the doubtful to hold their noses and vote for her. With Obama’s nomination of Merrick Garland to replace Scalia, we can see what that argument amounts to in practical terms.

This morning I found my email in-box swamped with messages from Progressive advocacy groups like, Keystone Progress and the like, directing me to petitions demanding Congress “do its job” and hold confirmation hearings on Garland.

The fact that Merrick had “bipartisan support” in his appointment to the D.C Circuit Court of Appeals back in the ’90s, and that an odious authoritarian like Sen. Orrin Hatch praised him as “a fine nominee,” doesn’t speak well for him. And conservatives have reason to consider him a tolerable Supreme Court justice.

As Reason magazine’s Damon Root points out (“Obama Nominates Merrick Garland to Replace Antonin Scalia on the Supreme Court,” March 16), Garland’s record shows that he “tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.” Specifically, he has almost always voted to support cops and prosecutors against criminal defendants. He also voted with a majority to deny habeas corpus rights to detainees in the U.S. gulag at Guantanamo Bay.

In other words, aside from his position on upholding Roe v. Wade, he sounds an awful lot like Antonin Scalia. That’s not to minimize the importance of women’s reproductive freedom — or at least what’s left of it, even under Roe v. Wade, with Republican state legislatures seeing how close they can get to making a right to abortion impossible in practice. But when that’s the main thing that separates a “liberal” judge from someone like Scalia, after decades of inroads against the Fourth, Fifth and Sixth Amendments and executive “war power” grabs by would-be caesars, it’s pretty sad.

Meanwhile, the outcome of the Super Tuesday primaries on March 15 make it increasingly likely that the election this November may come down to Hillary Clinton vs. Donald Trump. That means despite being an authoritarian-populist bigot and crypto-fascist who encourages Brownshirt violence by his followers, the GOP candidate might arguably still be less of a war hawk and corporate stooge than the Democrat. So much for electoral politics.

If Hillary Clinton is elected president, it’s questionable whether any Supreme Court nominee of hers would be any worse than — or even as good as — Merrick Garland.

Regardless of what the “progressive” cheerleaders say, I’m strongly leaning towards the position that the best possible outcome would be for Scalia’s seat simply to remain open as long as possible. So long as the Republicans block any godawful nominee by a Democratic president, and are unable to get an equally godawful nominee of their own, we’ll be left with 4-4 split decisions in cases where Scalia would have been the deciding vote — and where Garland might well have voted the same as Scalia when it comes to presidential war powers and police search and seizure rights. And in the meantime, there will be one less vote against women’s reproductive freedom.

When the alternatives are this unsavory, the best we can hope for is government paralysis.

Anarchy and Democracy
Fighting Fascism
Markets Not Capitalism
The Anatomy of Escape
Organization Theory