Republicans may be defiantly blocking the nomination of Merrick Garland to the Supreme Court, but behind their public militancy is trembling fear.
Failure to add a movement conservative to the vacancy left by Antonin Scalia balances the court so that it is no longer a partisan arm. Either Garland is eventually confirmed, or Republican intransigence contributes to Democratic victories in November, leaving the court in even more liberal hands.
Stacking the courts with conservative judges has been a part of the counter-revolution that emerged out of the upheaval of the 1960s and ‘70s in order to stamp out the gains of the Voting Rights Act and the Civil Rights Act, as well as the social progress achieved under the relatively liberal Warren Court. If President Obama can undo that in the final stages of his administration, it would be one of the most significant lasting legacies of his time in the White House.
Despite what Obama’s critics have feared, Garland is no radical, and was picked precisely because of his moderate stances and his past support from Republicans. His positions on Guantanamo Bay during his time on the District of Columbia Circuit court have liberals jittery, although his record is kind to unions, which have feared that the conservative court would eventually erode rights for organized labor.
In other words, he’s a man of some nuance, a refreshing item in our often predictably binary political arena. “He was a meticulous, yet compassionate, jurist,” Forward columnist Jay Michaelson, who clerked with Garland, told me in an email. “It’s a shame that such an ugly display of hypocrisy and partisanship is taking place alongside a man who embodies integrity.”
Garland, the grandchild of Jews from the Pale of Settlement, would, if confirmed, join a proud tradition of Jewish jurists. The joy in this isn’t solely about celebrating Jews in positions of power; the Jewish “family” of the court has always been a part of its forward-seeing edge. While the court’s darker elements have justified segregation, decided a presidential election on partisan lines and protected the corporate influence in politics, the Jews of the court have been the counterweight.
Ruth Bader Ginsburg, a civil libertarian and advocate of abortion rights, is celebrated as a feminist icon. Arthur Goldberg helped found the constitutional right to privacy, much to the ire of those who want the government to oversee Americans’ sex lives. Before coming to the bench, Abe Fortas represented Clarence Earl Gideon in the case that would grant the accused the right to an attorney. And, of course, Louis Brandeis and Benjamin Cardozo worked as judicial allies to Franklin Delano Roosevelt during the New Deal.
Jews have been a bigger influence in this arm of the federal government than in any other. That’s perhaps because the Supreme Court is the most Jewish of the branches. The executive branch is cold management, and Congress is less a place of dueling ideologies than it is one of cynical wheeling and dealing. The court, in its ideal depiction, is the place where scholars engage in grand debates about the essence of law, taking a deep look at the interpretation of the mandates our elders gave us. Ethical dialectic is meant to lead these minds to our governing rulings.
The Supreme Court, comprising only Catholics and Jews despite being in a country dominated by Protestants, is the most Talmudic institution in our government.
That is precisely why conservatives, motivated to restrict voting rights and protect corporate interests, are afraid of someone like Garland, by all accounts the kind of scholarly intellect that should be on the court. The whole Republican project since the failed campaign of Barry Goldwater has been based on strict ideological loyalty, which in turn is rewarded through party patronage. That’s easy to pull off in Congress, where election contributions can keep anyone loyal for as long as there are competitive elections.
But legal scholars on the high court — just like yeshiva students — can let their imaginations roam free in the minutiae in hopes of later emerging with broader meaning. Is computer code a form of free speech? Does that comma in the Second Amendment mean you’re allowed to join a militia and have a one-shot musket, or does it entitle everyone to an anti-aircraft weapon? Does it matter what the founders intended when they wrote the Constitution if we’re talking about technologies they could not possibly have imagined? The constant argument and questioning of advocates’ positions is meant to let the discourse bring us to the conclusions that best suit the people rather than showing deference to the pressures of powerful lobbies. And that’s not the way our political interests want things to work.
Someone like Scalia was able to temper that kind of intellectual pursuit in the name of loyalty to his ideology, which went hand in hand with post-1960s conservatism. So, someone like Garland isn’t guaranteed to upend the court for conservatives. Nevertheless, his nomination can restore the court to its rightful status as a hall of intellectual debate rather than a convenient vehicle for partisan advance.
Ari Paul is a journalist in New York City who has covered politics for The Nation, The Guardian and many other outlets. Follow him on Twitter at @AriPaul