RUTHFULLY YOURS

Merrick Garland, the appellate judge whom President Barack Obama has nominated to the Supreme Court, is a “moderate.” Of that we are assured by all the best people writing in all the usual venues: USA Today, Politico, the Los Angeles Times.

A moderate what?

The question may be in this instance a purely intellectual one. Garland could be the second coming of Solomon, and Mitch McConnell and his Republican colleagues would be looking to leave him locked up in the Senate basement until after the presidential elections, after which President Cruz might choose a better candidate; President Clinton, a much worse one (which would probably result in the lame-duck Senate working to confirm Garland); or President Trump, the devil knows what. The immediate case against advancing Garland’s nomination has nothing to do with Garland and everything to do with the Senate rousing itself to do its constitutional duty and check President Obama’s executive imperialism with such tools as it has at its disposal.

Carrie Severino and others have argued here that Garland is no judicial moderate, that he is a quiet left-wing activist well disposed to political efforts to undermine the Second Amendment. On that question, I defer judgment to our experts. But there is another question we ought to consider, which is whether there is any such thing as a judicial moderate.

If the expanse of your political imagination is roughly the dimensions of the New York Times, that may seem an absurd question. We hear all the time about “moderates” and “extremists” in the nation’s courts. A great deal of huffing and puffing, which no doubt dishevels the pages of a nearby copy of The Economist, insists upon the virtue and the needfulness of such moderation.

But the fundamental question that we must ask about Supreme Court nominees — all nominees to all benches, in fact — is not one of degree, which is the sort of question that the criterion of “moderateness” would apply. Instead, it is an either/or question: Does the law say what it means and mean what it says, or are judges empowered to graft private notions of justice from their own souls onto the law and the Constitution?

The late Kathryn Steinle, an innocent young woman who was gunned down and killed on a San Francisco street by an illegal alien with seven felonies and five deportations already on his resumé, is just one of many Americans who are lying in their graves today as a direct result of the “sanctuary” policies that have turned hundreds of U.S. cities into safe havens not only for lone-wolf sociopaths, but also for organized members of Latin American drug cartels, violent criminal gangs, and Islamic terrorist cells. Moreover, countless additional victims have had their psyches forever scarred, their bodies permanently damaged, and their lives all but destroyed for precisely the same senseless reason. The numbers are ugly: Of the 9,295 deportable aliens who were released after their arrest by sanctuary jurisdictions during the first eight months of 2014 alone, some 2,320 were subsequently re-arrested, on new criminal charges, soon thereafter. And before their initial release, 58% of those 9,295 aliens already had felony charges or convictions on their records, while another 37% had serious prior misdemeanor charges.

Sanctuary policies bar police and other public-sector employees in many U.S. cities from notifying the federal government about the presence of illegal aliens residing in their communities. As such, these policies defiantly give the proverbial middle finger to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA ) that Congress passed twenty years ago to require that local governments cooperate with U.S. Immigration & Customs Enforcement (ICE). More than 200 cities nationwide currently observe formal sanctuary policies that are written as resolutions, ordinances, or executive orders. Numerous other cities, meanwhile, have implemented similar policies on an informal basis, meaning that they are unwritten but nevertheless authorized by local government leaders and obeyed by city workers. All told, approximately 340 U.S. cities administer either formal or informal sanctuary policies today.

President Barack Obama nominated Merrick B. Garland, who currently serves as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to replace the late Justice Antonin Scalia. The White House’s strategy was to pick someone whom they believe will be politically difficult for Republican senators to simply ignore – a stealth leftist recast as a “centrist.” The White House even created a new Twitter handle, @SCOTUSnom, to rev up activists seeking to pressure Senate Republicans into giving President Obama’s nominee, in Obama’s words, “a fair hearing and an up-or-down vote.”

The Democratic Party has lost no time making Obama’s nomination a highly charged partisan issue. All the Republicans want to do is to let the voters have their say this fall in choosing the next president before a lifetime position on the Supreme Court is filled. But Debbie Wasserman Schultz, Chair of the Democratic National Committee, insists that lame duck Obama must have his way and change the entire ideological balance of the Supreme Court for possibly decades to come. “Frankly, I’ve grown a little sick of Republicans in Congress and their antics that have ranged from simply unproductive to downright offensive,” she complained in a letter to Democrats. Somehow, in Wasserman Schultz’s fevered imagination, it is “offensive” and “obstructionism” to defer to the will of the voters in a presidential election year before making such a consequential decision.

The left’s propaganda machine will argue that Judge Garland is a centrist whom all fair-minded senators should support. The New York Times is already quoting Utah Senator Orin Hatch, who said back in 2010, when Judge Garland was being considered to fill another Supreme Court vacancy, “I know Merrick Garland very well. He would be very well supported by all sides.”

However, Senator Hatch made that statement when President Obama was looking to replace Justice John Paul Stevens’ seat. President Obama refused to take Senator Hatch’s “advice” and rejected Judge Garland. He nominated the more left-wing Justice Elena Kagan instead, whom the Senate confirmed. The ideological balance of the Supreme Court was not in jeopardy with Elena Kagan’s confirmation because she was replacing one of the more left-wing justices at that time. Judge Garland today, by contrast, would be replacing the intellectual leader of the Supreme Court’s more conservative members.

President Obama has nominated Merrick Garland, chief judge on the federal DC circuit court of appeals, as a U.S. Supreme Court justice to replace the late Antonin Scalia.

Few would describe Garland a flaming liberal, in the mold of current Justice Ruth Bader-Ginsberg, or former Justice John Paul Stevens. More likely a less flamboyant liberal, but liberal just the same, as his mentor Justice William Brennan, for whom Garland clerked in 1978-79.

Brennan was a champion of the First Amendment, perhaps Garland will follow suit.

Yet Brennan was both the ghostwriter for Justice Blackmun’s majority opinion in Roe v Wade, and as at least one commentator asserts, the author of the three worst liberal SCOTUS opinions ever.

The most notorious was Plyler v Doe in 1982, ruling that children of illegal immigrants have a right to free public education. It is hard not to see Garland’s alignment here to Brennan.

On his own, Garland has gold-plated his liberal credentials by denying the 2nd Amendment, most egregiously voting to rehear a case in which a DC ban on handguns for personal protection was overturned.