Why Merrick Garland Should NOT Be on SCOTUS

  • For Reason’s full, hour-long interview with Barnett with downloadable links, go HERE

Georgetown Law’s Randy Barnett says his former Harvard Law classmate, Merrick Garland, is “qualified” for the Supreme Court.

But that doesn’t mean the Senate should confirm him.

Basic qualifications for a seat on the Supreme Court are “necessary but not sufficient,” says Barnett, whose new book, Our Republican Constitution, lays out his case for “judicial engagement,” in which judges actively challenge and invalidate laws and policies that infringe on individual rights and freedom. Our Republican Constitution is a powerful rebuke to long-dominant democratic majoritarianism, which holds that legislators have broad powers to effectively do whatever they want. Judges, in this reading of law, should defer to the wishes of lawmakers and government agencies.

Since the confirmation of recently deceased Antonin Scalia, Senate hearings have rightly focused not just a nominee’s “qualifications,” explains Barnett, but on his or her “judicial philosophy.” And on that score, he says, Garland would be terrible for people who care about limiting and restraining government. “He is a deference guy, par excellence. He defers to the EPA, he defers to administrative agencies, that guy defers like crazy,” says Barnett. “And for that reason, I do not think he would be a good justice for us to have.”


Reason: We’re going through a kind of a non-confirmation confirmation period. Do you think that—

Randy Barnett: My section mate in law school, Merrick Garland.

Reason: Okay. Well, I was going to ask you—is Merrick Garland Supreme Court worthy and is it wrong to deny him even a confirmation hearing?

Randy Barnett: Merrick Garland who was my classmate was one of the stars of the section. He was one of the gunners in the class that would challenge the professors the entire year. We all looked up to him and a couple of other people who were like in that upper echelon and he’s a very very decent human being. Would be a wonderful adherent to the democratic Constitution. He is a deference guy. Par excellence. He defers to the EPA. He defers to administrative agency. That guy defers like crazy. And for that reason, as a matter of judicial philosophy, I think he would not be a good justice for us to have, so I would be opposed to him. But on character and fitness grounds and ability grounds—

But you see, part of the problem is evaluating justices on the basis of so-called “qualifications.” As long as everybody was in agreement in the democratic Constitution, the post-New Deal understanding of what constitutions should be, which Republicans and Democrats were all in agreement about, then at that point, all you’re interested in is qualifications—how smart are you, how good are you, because everybody basically agrees, but now we have a fundamental disagreement about the Constitution, starting with the Scalia appointment and, I mean, to some extent with Rehnquist, but Rehnquist, then Scalia, then Thomas, we have a disagreement about the Constitution.

Now, qualifications aren’t enough. What you need is what Joe Biden used to say you have to look for and that is judicial philosophy and that gets us back to originalism. That is what a justice should be—an originalist, first and foremost.

Reason: Let me ask this—

Randy Barnett: So let me just say—qualifications are necessary but they’re not sufficient.

Reason: This is a political question, not a legal one or a judicial one, but does it make sense for— Then is it legitimate for the Republican Senate essentially to forestall, to run the clock out on Garland’s appointment or confirmation possibility. Is it legal to do that, and I guess it is, but is it proper to do that simply because you don’t want to give the sitting president a shot at it?

Randy Barnett: It’s every bit as constitutional. I mean, it’s completely constitutional. In fact, I haven’t heard a serious argument. Nobody makes a serious argument that it’s not constitutionally permitted. It’s all an argument about, as you say, whether it’s proper or not and the Senate is as entitled to veto or fail to consent to a nominee as the president is to select somebody. The president did not select me or someone like me, he selected my classmate Merrick, and therefore he discriminated against me and he went with Merrick instead and it’s a perfectly appropriate for the Senate to say we disagree about him and whether there needs to be a hearing or not actually at that point I would say there should not be a hearing because given that we are in the election cycle, given that this appointment’s going to last far beyond this president’s tenure, it’s something that ought to be made an issue at the next election. It’s something that the people as voters, the electorate, should have a say-so in how this Court’s going to look in the future.

(Reason Page 7)