One judge who shouldn’t be on the Supreme Court short list

On the top of every list there seems to be one name for the Supreme Court vacancy. The name is Merrick Garland. He should not be at the top. In fact, he should not be on the list at all.

In every story, he is universally described as “well-liked by Republicans” or “widely acceptable to Republicans.” In fact, even though he was appointed to the District of Columbia Circuit of the U.S. Court of Appeals by Democratic President Bill Clinton, 32 Republicans voted for his nomination.

{mosads}There seems to be a prevailing sentiment that Republican senators, who voted in large numbers to confirm Garland in the past, would readily and easily do so again. The appointment is to the highest court in the land and, even more crucially, the justice appointed at this time will be the deciding vote in a court that is on most issues equally divided 4-4, liberal vs. conservative.

Some have argued that Garland fits the bill perfectly because he is a “moderate,” not a “liberal” and, above all, the president should pick someone who can get confirmed regardless of his or her views or judicial philosophy. That reason alone — that the nominee is “confirmable” — should not motivate a president to choose someone in particular. A president who takes that path is denigrating the process and making this most important appointment nothing more than a political deal.

But my greatest opposition to even considering Garland has to do with something else: his record as a sitting appellate court judge, specifically, his decision in the case Alexander v. Daley. I will not go through all the details of the case, but I was sitting in the courtroom when the case was argued and have read all the relevant material and opinions.

In short, what the plaintiffs were attempting to do for the citizens of the nation’s capital was to go to the courts and get voting rights for the over 600,000 residents of the District of Columbia. As I hope you know, the United States of America is the only country in the world that deprives the citizens of its capital full voting rights in their national legislature. This case was to be D.C.’s Brown v. Board of Education: a landmark decision that would forever remove this ugly, dirty secret of our democracy.

The basis of the legal argument put forth by American University law professor Jamin Raskin, Assistant D.C. Corporation Counsel Walter Smith and attorneys Charles Miller, Evan Schultz and Tom Williamson of Covington & Burling — as noted in a law review article co-authored by Raskin in Human Rights Brief — was that the “denial of the D.C. community’s right to be represented in the U.S. Congress violates the rights of Equal Protection, Due Process, a republican form of government, and the privileges and immunities of national citizenship — all critical democratic guarantees of the U.S. Constitution.”

What Garland did, along with another judge, was to rule against the citizens of D.C. In a tortured and simplistic opinion, he said that since D.C. was not a “state,” its citizens should not be accorded the same rights as every other U.S. citizen. This opinion was the moral equivalent of Plessy v. Ferguson (1896), saying that “separate but equal” was legal.

In my opinion, it was a classic illustration of voter suppression, using a phony legal justification for denying the vote to an entire group of U.S. citizens — in this case, citizens of the nation’s capital. That decision alone should disqualify him from consideration to the highest court in the land.

It is my opinion that Garland did not want to go out on a limb and favor anything so radical as providing the vote to over 600,000 disenfranchised citizens (76 percent of whom are registered as Democrats). You see, this opinion would be viewed as controversial and too liberal, and the last thing Garland wanted was to have those monikers attached to him.

So he carefully positioned himself on the “right” side so he could be viewed as viable if a chance for the Supreme Court ever presented itself. When it came to this decision, Garland, with all his impressive educational and professional credentials, chose to think of his own judicial advancement first.

At the very top of the Supreme Court, emblazoned in stone, are these simple words: “Equal justice under law.” Merrick Garland decided to ignore and violate that sacred principle.

This piece has been corrected to note that Judge Merrick Garland sits on the U.S. Court of Appeals.

Plotkin is a political analyst, a contributor to the BBC on American politics and a columnist for The Georgetowner.