Bench Memos

Law & the Courts

Dionne’s Stew of Confusion on Scalia Vacancy Battle

In his Washington Post column today, E.J. Dionne Jr. offers a stew of confused arguments over the pending battle to fill the Scalia vacancy. The stew includes a blatantly wrong “translation” of my criticism of judicial activism.

Let’s sort through the mess:

1. Dionne contends that “a reason beyond garden-variety partisanship” that Senate Republicans don’t want to hold a hearing on the Garland nomination is to “evade[] a full and open debate over the conservative judicial agenda.”

For starters, it’s not “garden-variety partisanship” to be alarmed that an Obama appointee would move the Court markedly to the Left and entrench a liberal majority that would badly misconstrue the Constitution and federal statutes on issue after issue. Senate Republicans pursue a high and noble goal in working to prevent that result.

Dionne’s claim that Senate Republicans’ no-hearing-no-vote position is some sort of response to Judge Merrick Garland’s record is belied by the fact that Senate Republicans adopted that position from the outset of the Scalia vacancy irrespective who the nominee would be. Senate Republicans plainly took that position for the same reason that then-Senate Judiciary Committee chairman Joe Biden advanced it in 1992: to unify their coalition in order to prevent the Court from being transformed in a direction they oppose.

Anyone who imagines that a Supreme Court confirmation hearing would provide a “full and open debate” on anything hasn’t been paying attention to confirmation hearings. That broader debate can better be, and should continue to be, carried out apart from any hearing.

2. Dionne claims that “Garland’s record reveals him to be a devout practitioner of judicial restraint.” But, as Greg Weiner explains in a fine essay today, Dionne is confusing two very distinct concepts: deference to the will of administrative agencies and deference to the will of Congress (and, I would add, state legislatures).

Whether a sound concept of judicial restraint includes deference to the will of administrative agencies is, at the least, a hotly contested question, but it is only such deference that Garland’s advocates tout (and even then, it is disputed whether Garland has been politically selective in his exercise of that deference).

By contrast, as Weiner points out, Garland’s advocates have identified nothing in his record to indicate that he applies judicial restraint when determining whether democratic enactments comply with the Constitution. If there were any such evidence, the White House would probably have found it disqualifying.

(I will repeat my very high regard for Garland’s intellect and decency. It’s not Garland’s fault that Dionne is making bad arguments on his behalf.)

3. Dionne cites a 2014 column by George Will that openly advocated libertarian judicial activism, and he quotes from a Bench Memos post of mine that vigorously took issue with Will’s position. But Dionne baselessly asserts that my support of originalism supplemented by judicial restraint is somehow “like Will’s” support of libertarian judicial activism. (How, then, have I earned my fervent libertarian critics?) Dionne also offers a strange “translation” of my post—into his native dialect of Distortish?—that claims that I was “instructing Will to notice how originalism … leaves judges with plenty of power to toss out progressive laws.” As any competent reader of my post will readily discover, I was instead emphasizing, contra Will, the proper limits on judicial intrusion into the democratic realm.

Dionne’s weird distortions feed his broader charge that “conservatives have embraced an astonishingly aggressive approach to judging” and that George Will, unlike some of the rest of us, is merely being “straightforward” about it. He thus completely obliterates the broad differences on judicial decisionmaking between conservative advocates of judicial restraint and libertarian critics of it.

4. Dionne states that “this is a debate over how we define democracy.” If Dionne means that the battle over the Scalia vacancy involves debating the proper limits on judicial power, then I agree with him. But Dionne, who has supported all sorts of “astonishingly aggressive” liberal judicial excesses, clearly has no criterion other than his own political preferences for defining those limits.

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