April 5, 2016

Garland's Judicial Philosophy is Not Moderate

  • Democrats and the media portray Judge Garland as a moderate, but the judicial philosophy of Washington Democrats is anything but moderate.

  • President Obama has said that he will select nominees who seek “fair outcomes,” rather than the outcomes dictated by law. Judge Garland is just this kind of nominee.

  • In this election, the American people will choose between a Supreme Court that understands it is bound by the law or one that believes it is not.

In this presidential election, one of the choices facing Americans is between Republicans’ and Democrats’ understandings of the Supreme Court’s role. It is either a Supreme Court majority that understands that it is bound by the words of the Constitution and the law, or one that believes it can ignore the words of the law to satisfy its own values.


Democrats seek to obscure this crucial distinction in judicial philosophies by portraying Judge Merrick Garland as a “moderate.” This is no surprise. Every liberal justice on the court was described as a “moderate” or a “centrist” while his or her nomination was under consideration.

Liberal nominees are always “moderates”

Media calls liberal SCOTUS nominees moderate

Once confirmed to the court, these four justices consistently voted as a bloc to advance the liberal agenda. They have voted to undermine the death penalty, Second Amendment rights, and the religious freedom of business owners; to uphold Obamacare and the illegal actions of the EPA; and to create a right to same-sex marriage. For Washington Democrats and their supporters in the media, anyone who promotes liberal views is a moderate.


Judge Garland’s record as a judge on the D.C. Circuit is no more enlightening. Appellate judges tend to have mainstream records because their job is to follow precedent, not to make it. Their records should show only hints of political leanings. The Supreme Court is different. It is the final word on the meaning of the Constitution and the laws of the United States. It has the power to limit or overturn its own precedents. How Judge Garland might rule with such power in politicized cases is not revealed by his appellate court record as much as it is by the man who has nominated him.

President Obama has frequently outlined his standard for Supreme Court nominees. He wrote in February that a nominee should have “experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives ... That, I believe, is an essential element for arriving at just decisions and fair outcomes.” In other words, he believes justices should reach the right outcome based on their own values, rather than the outcome the law dictates.

“If … our pronouncement of constitutional law rests primarily on value judgments, then … confirmation hearings for the new Justices should deteriorate … Value judgments, after all, should be voted on, not dictated, and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.” Antonin Scalia, 06-29-1992

There is no reason to think that Judge Garland would frustrate President Obama’s desire to have a Supreme Court that imposes liberal political standards. His appointment would create a majority on the Supreme Court that believes its value judgments supersede the words of the Constitution, the laws enacted by Congress, and the democratically expressed will of the American people. The people deserve to have their voices heard before the Supreme Court swings in such a direction.

“Judge Garland would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers.” NFIB, 03-16-2016

“[President] Obama has already nominated two Supreme Court justices who oppose our fundamental individual right to own firearms safely and responsibly. The NRA knows better than to expect anything different with his third choice.” NRA, 03-18-2016

Issue Tag: Judiciary