The Briefing 03-17-16

Part I

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Obama nominates Merrick Garland to Supreme Court, setting up political showdown

The big announcement came yesterday and it was made by the President of the United States. Standing in the Rose Garden at the White House, President Barack Obama announced yesterday that he will nominate federal Judge Merrick Garland to the seat on the United States Supreme Court—it was vacated upon the unexpected death in recent weeks of Justice Antonin Scalia. The big announcement was made in the context of what will become a massive cultural conversation, and this is going to be also a political confrontation pitting the White House over against the United States Senate. The Constitution says that the President of the United States has the right to make nominations to the courts, including the U.S. Supreme Court, but the Senate has the right and the responsibility, according to the Constitution, of advice and consent, which is to say that the President may nominate, but only the Senate may confirm a justice to the federal courts, including most importantly the United States Supreme Court.

This is going to be a massive cultural conversation, a massive American conversation because of two reasons in particular. The first is the role of the Court in American culture. Whereas the Supreme Court has not always had such a central role in America’s public life, in more recent decades issues have arrived before that court. And the legislature, in this case the Congress, has deferred to the Court in order to make many of the most important policy decisions that have faced American culture. This goes back at least to the time of President Franklin Roosevelt in the 1930s and 40s. More recently, the Supreme Court has been the arena for dealing with issues such as abortion and even same-sex marriage, revealing the Court’s usurpation of the political process in so many of these issues. That’s why every nomination to the Supreme Court is consequential; that’s why the Supreme Court in terms of its future direction is so important for the direction of America’s public life; and that is also why the second issue comes to fore.

The second reason why every nomination to the Supreme Court become such a focus of public attention and that’s because, actually, it’s very rare that American citizens, at least a large percentage of those citizens, actually focus on important ideas and their consequences. But given the way that a nomination battle shapes up for the Supreme Court, issues are very, very central to the conversation, and there’s no way even for the public—generally rather idea averse—for the public to avoid what is at stake. That’s why there’s so much attention when the President makes the nomination, and that’s why there is so much attention to the televised hearings of the Senate Committee on the Judiciary—that’s the committee that makes recommendations to the full Senate concerning judicial confirmations, and it is the committee that interviews in person nominees to the nation’s highest courts. And it’s that process that focuses so much of the public attention.

The President of the United States made his announcement in the face of the fact that the Republican leadership in the Senate has announced that it will not consider any nominee that President Obama brings forth. There’s historical background to this that is very important. If President Obama is successful in having a third nominee to the Supreme Court confirmed by the Senate, that would mean that one third of the sitting justices of the U.S. Supreme Court had been nominated by one President. That’s pretty significant in itself. But President Obama also understands that this nominee will replace Justice Antonin Scalia. He was not only a member of the Court’s conservative wing, he was also in many ways the most important conservative legal theorist in the United States legal world in a generation. And that’s why replacing Antonin Scalia with anyone else is going to make a major change in the Court, and thus both sides in this controversy understand what is at stake.

The Republican leadership of the Senate is citing the precedent that was actually articulated by Joseph Biden, who was then a United States Senator from Delaware and Chairman of the Senate Committee on the Judiciary, when he suggested in that role that another president of the United States, in that case a Republican president, should not make a nomination to the Supreme Court in the last months of his presidency. That’s a rather awkward situation for now Vice President Biden because it is his president whom he serves who has just made a nomination knowing the fact that even as he is a liberal Democrat making the nomination, eventually this will have to be decided by the United States Senate that has a Republican majority. Thus the battle is joined and it’s going to be a very important battle for the future of the Supreme Court and thus for the future of so many issues in America’s public life.

In recent days, the White House has set the stage for the President’s announcement by indicating that the President had narrowed his range of potential nominees to three; of course as of yesterday that nomination process was narrowed to one. The President had also said on Wednesday that what he intended to use as a guide in making the nomination were three criteria: First, the justice must have a rigorous intellect and must then hold unimpeachable judicial credentials. Secondly, someone who recognized, in the president’s words, “The limits of the role of the judiciary as a branch of government.” And third, someone who had life experience, who understood that the entire responsibility of the courts “is not about abstract legal theory.”

Most of that is simply boilerplate political language, what you would expect any president to say about any nomination to the United States Supreme Court. That last criterion is really interesting, however, because when the President spoke about choosing a justice who understands that law “is not about abstract legal theory,” he was clearly making a reference to the fact that biography matters when it comes to a judge and speaking to the fact that, according to the President’s own legal philosophy, it should matter. That’s a direct confrontation with the understanding that was held by the late Justice Antonin Scalia, the man any new justice will replace on the Supreme Court. Justice Scalia did not say that character doesn’t matter, he said that biography shouldn’t matter. In other words, if the Constitution means what it means, if the text is understood in terms of the words and the intentions of the framers, it shouldn’t matter who was doing the interpretation. The interpretation should be guided by the text. The President of the United States and legal theorists in the courts and beyond in recent decades have held to a contrary position, that indeed the law they often describe in terms of a living Constitution should change as society changes. Justice Scalia said the law may change, but it ought to go through the honest process of amending the Constitution. It ought to require the democratic process; it shouldn’t be left in the hands of a majority of what Justice Scalia called “nine superannuated,” which is to say increasingly elderly, “unelected judges.”

In the confirmation battle, you can count on the fact that biography will matter, and thus it matters that in this case. Judge Merrick Garland is 63 years old. That’s unusually old for a presidential nomination to the Supreme Court for the very simple reason that most presidents want the nominees that they will place on the court to serve there for a relatively long time, to extend their own influences as president. But what we see in this case is that President Obama has made a calculated choice and, politically speaking, it is a very brilliant choice, just as an act of politics. The President has chosen someone who, under most circumstances, what we might call ordinary circumstances, would be a likely confirmation to the Supreme Court. But these are not normal times and that is a political fact as well. On any number of issues, this President who has extended his authority by the use of executive orders like no previous president in modern American history, this President has found so many of his policies, including his famed healthcare legislation, repeatedly before the United States Supreme Court. And issues are still coming before the Supreme Court that will have direct impact on the Obama Administration and on the President’s decisions. Among these are issues dealing with everything from climate change to contraception and religious liberty.

Judge Merrick Garland comes from a Jewish background in Chicago. He is a graduate of both Harvard College and the Harvard Law School; in other words, he would be serving amongst mostly his own classmates when it comes to graduates of Ivy League universities and Ivy League law schools. He has served as a federal judge for a number of years after having been nominated first by President Bill Clinton in 1995, and eventually confirmed by the United States Senate in 1997. Prior to his service on the federal bench, Judge Garland served as a federal prosecutor, most notably prosecuting Timothy McVeigh and others in the Oklahoma City bombings.

The judge currently serving as the Chief Judge of the U.S. Court of Appeals for the D.C. circuit would have the kind of resume you would expect of any nominee coming from a Democratic president. From that perspective there is nothing surprising about President Obama’s nomination of the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, that is Judge Merrick Garland, to the United States Supreme Court. That follows precedent and previous pattern. Those defending the nomination, such as Lincoln Caplan of the Yale Law School, described the nomination of Merrick Garland as,

“President Obama’s sensible Supreme Court choice.”

But there was also a really interesting response in the aftermath of the nomination coming from the political Left. This too should tell us something. It doesn’t tell us that Merrick Garland is in any sense a conservative jurist; what it does tell us is that he does not have a track record that would give confidence to those who have particular legal concerns, such as those who are pushing the LGBT movement, those who are especially interested in abortion, which is to say people on both sides of this cultural divide and cultural conversation. Writing at Slate.com, Mark Joseph Stern wrote of his disappointment in President Obama’s choice, describing Merrick Garland as “an extraordinarily disappointing choice” for the Supreme Court. Raising his first objection, Stern writes that President Barack Obama’s nomination of Garland is extremely disappointing because, as he says,

“President Barack Obama’s nomination of Merrick Garland to the Supreme Court is extremely disappointing. Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, is about as mainstream as they come: a white, Harvard-educated Chicago boy who bounced between white-shoe firms and the Justice Department before President Bill Clinton placed him on the D.C. Circuit in 1997. Garland is the type of Washington elite who could’ve been placed on the court at almost any time over the past century.”

Now that’s a true statement, and it also reveals the political strategy behind President Obama’s nomination. And that’s why some on the Left are quite worried about the nomination. This judge does not have a textual track record that will give them assurance on a number of issues in which they demand that assurance, including abortion rights and gay rights. Stern also says out loud in this article what many liberals are thinking but wouldn’t say, and that is that Merrick Garland as a Jewish, Chicago-born member of the Washington elite is not exactly what he describes in this article as the needed poster child for political activism. He says that the president failed to give the Democratic base “a new kind of champion to rally around.”

But Stern also complains that, according to his view, Judge Garland is just too much of a centrist. In particular, Stern is concerned that Judge Garland is too respectful of judicial precedent—more on that in just a moment—but what’s important to note at this point is that even as liberal groups aren’t sure they’re going to support this nomination with excitement. But that doesn’t mean that conservatives should find any solace.

Writing at the Los Angeles Times, reporters David Savage and Del Quentin Wilber wrote that it’s going to be difficult for Republicans and Conservatives to oppose what they described as “the careful moderate Judge Merrick Garland.”

They went on to say that,

“Garland is one of the most respected and best liked judges in Washington, among both Republicans and Democrats. He has been seen as a potential nominee to the United States Supreme Court ever since the 1990s.”

Trevor Burrus goes even further, arguing as a lawyer for the Cato Institute—that’s a libertarian, more right-leaning organization—that in this case, Judge Merrick Garland is the very best that conservatives can hope for from the Obama Administration and perhaps in the immediate political future.

This points to one of the big issues we have to keep in mind. We are in a presidential election year and our thoughts are not only on President Obama’s nomination and its fate in the U.S. Senate, but what might happen after a new president is elected in November. To put the matter bluntly, some Republicans and conservatives are having to do a new kind of math, a new kind of analysis, trying to figure out if indeed waiting for the general election in November could set up an opportunity for a President Hillary Clinton to name a nominee—and not as a lame duck in the last months of her administration, but in the fresh energy of a new presidential administration. Furthermore, the fate of the United States Senate is also in question in the 2016 election, and thus those who are now opposing Judge Garland’s nomination and furthermore, as the Republican leaders have stated that they would oppose any nominee coming from this president—that raises the stakes in terms of the election in November.

And thus the stage is set for what might be called a perfect storm in terms of the political context, a storm in which everything is at stake: the future of the American presidency, the future of Congress, and the future of the United States Supreme Court. No simple political calculation is going to lead to any kind of clarity in the short term. This is going to be a political battle that is going to be played out in this country that reveals an underlying worldview conflict that isn’t new, and isn’t going to be over anytime soon.

Understanding what the shift from one justice—just one to another—could mean in this context, from a conservative justice to a more liberal justice, Ed Whelan, the President of the Ethics and Public Policy Center said that while Judge Garland is in his words, “as good a nominee as anyone President Obama might plausibly have selected,” he went on to say that the Senate should not confirm even Judge Garland to the United States Supreme Court because that appointment “would move the court markedly to the left.”

Constitutional conservatives are particularly concerned about one issue on which Judge Garland does have a textual history, and that is gun rights and the Second Amendment. Judge Garland was in a group of judges at the appellate level who were reversed on the issue of gun rights by the Supreme Court and its important Teller decision, a decision for which the majority opinion was written by none other than Antonin Scalia, making very clear that the exchange of Justice Scalia for Judge Garland could be massive in its consequences.

I mention the issue of precedent; when Judge Garland is described as a judicial centrist or a moderate, what is generally cited is his deference to precedent that is the precedence of prior courts, especially to higher courts. That raises a huge issue. When we look at the track record to date of Judge Merrick Garland, we understand how deferential he is to precedents established by other courts, and in particular by the Supreme Court of the United States. But the Supreme Court of the United States sets the precedents and thus, what we don’t know here is absolutely crucial: We don’t know how judge Garland would operate when he’s not respecting precedents, but rather making them.

The recent history of the Supreme Court over the past several decades would give us numerous examples of judges who were confirmed as centrists who, once they were on the Court, turned out to be anything but. It looks like Judge Merrick Garland is a very decent man who holds the respect of people in the legal profession at both extremes and amongst politicians of both parties. It looks like he has an excellent resume and exactly the kind of experience that in normal times would commend someone as a nominee to the United States Supreme Court. But as we now understand, these are not just normal times. What is at stake is the future direction of the United States Supreme Court and the shift of just one justice in this context could be absolutely massive in terms of the future of this country. That points to one thing upon which both sides are agreed, and that is the importance at this point of any nomination to the Supreme Court of the United States.

Part II

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In the classroom and locker room, orderliness and discipline are best for children

Next, Tuesday’s edition of the Wall Street Journal featured a column written by Eva Moskowitz, and she’s the founder and CEO of Success Academy Charter Schools in Manhattan. Those schools have been at the center of recent controversy, especially in the pages of the New York Times, and one of the accusations made against these charter schools is that their behavior code is just too strict. What Moskowitz writes about is that even as the cultural and educational elites in Manhattan, and in particular those who are trying to put the charter schools out of business, complain about the schools being too strict, parents are signing up by the thousands to get their kids in these schools because, as it turns out, the parents aren’t thinking like the intellectual elites. The parents actually want what many liberal education professors say they should not, and that is orderly, disciplined classrooms for their own children. As Moskowitz writes,

“Many education professors are also critical of strict charter schools. But there is at least one group that strongly supports our schools: parents. For the current school year, Success Academies received 22,000 applications for 2,300 spots. Another network in New York City with a similar approach, Achievement First, received 21,000 applications for 1,000 spots. Meanwhile, most district schools with which we compete are massively under-enrolled.”

But they’re not only under-enrolled, they’re massively under disciplined and they are massively under structured. One of the things going on here is that during the 1960s and the 1970s, liberal educational theorists suggested that the schools were simply too repressive when it comes to children and teenagers, that what the school should do is lessen the rules and increase the freedom of these students to express themselves. Well, over the decades, it’s become clear that there is an inverse relationship between students making the rules themselves and expressing themselves and students doing well in education. In a motto made famous during the 1970s, some liberal educational theorists argued that the teacher as “the sage on the stage” needed to be replaced with what would be now “the guide on the side”—that is, someone who’d be a mere facilitator, not a disciplinarian, not an authoritative teacher. But as Moskowitz writes,

“Critics claim that strict discipline stymies students’ creativity and voice. This just isn’t true. Requiring students to wear a uniform, speak respectfully and pay attention in class doesn’t prevent them from developing their identity or thinking for themselves. Our view at Success is that when schools are calm and organized, children feel free to express themselves precisely because they do feel safe.”

I found one particular part of this article really fascinating: where liberal theorists were quite outraged that the students in these classrooms were expected to focus their eyes on the teacher when the teacher was speaking. That’s probably one reason why parents want their students to be in these classrooms: these are the same parents who when speaking to their children expect their children to look at them while they’re speaking.

Pair that with another article that appeared the very same day in a different newspaper, in this case, on the front page of the Sports section of the New York Times. Juliet Macur writes an article, the headline:

“Something Is Missing in High School Hazing Stories: Adults.”

It turns out as Macur writes from Berwyn, Pennsylvania that when you look at hazing stories, particularly in terms of boys and young men in colleges and in high school, the hazing takes place when one particular condition prevails, and that is there is no adult in the room. Hazing has been a part of the sporting world for a very long time and some coaches and others, according to this news article, let it go on because they believe that it leads to a bonding exercise and to teambuilding. But what’s really going on is often criminal activity by any definition, including some horrifying things that are now making headlines as they have even in recent years across the country. A Pennsylvania prosecutor who is dealing with several of these cases said,

“If you want to have a kid stand up and sing a silly fight song, then it’s all right, or let the freshmen carry the Gatorade onto the practice field, go ahead,” Hogan said. “But kids have to stop doing things that will have lasting physical or psychological damage to other kids.”

Without going into detail, let’s just say that truly horrifying crimes are involved in this article. One authority cited in the article said that many coaches consider hazing a way for their team to bond and that that bonding supposedly helps them win.

“Those adults also have an ‘it happened to me, so it will happen to you’ attitude about hazing and just consider it a part of sports.”

But one of the points made in this article is that hazing has become far more serious. It has become, in many cases, something over the line of criminal behavior and physical assault. And then this news story has this paragraph:

“Coaches who leave students in charge of their own locker room are basically leaving ‘the inmates in charge of the asylum,’ she said, adding that the adults in charge are only asking for trouble when they leave teenage boys unsupervised because those boys are often testosterone-fueled and power-hungry, a perfect combination for hazing to occur.”

The main point of this article, however, is that if an adult is in the room these bad things generally don’t happen; they almost never do. You take the adult out of the room, there’s no adult in the room, bad things happen. And the point of this article is, who could then be surprised?

Put these two articles together and you see the secular world trying to figure out why mayhem ensues, when there is no discipline there is no order, and when there’s no adult in the room. And that’s when you have to ask the important, essential, worldview question: Under what circumstances can anyone believe that that’s a good idea?