Bench Memos

Law & the Courts

George Will’s Misguided Attack on Senate Republicans

In his latest column, George Will charges that Senate Republicans have had an “incoherent response to the Supreme Court vacancy” that “is a partisan reflex in search of a justifying principle.” But it’s Will’s attack on Senate Republicans that lacks coherence:

1. Will purports to present five reasons that Senate Republicans have provided for their determination to keep the vacancy open until after the election. But his presentation of those supposed reasons isn’t at all fair.

For starters, Will entirely omits what I understand to be the predominant reason: that filling the Scalia vacancy with an Obama pick would drive the Court markedly to the Left on a vast range of issues and that the impending elections ought to give the American people the opportunity to decide whether we want to go down that route to perdition.

Of the reasons that Will does attribute to Republicans, his first (“right to be obdurate”–Will’s tendentious casting of the fact that the Constitution does not require Senate action), third (Joe Biden’s 1992 comments), and fourth (Democrats would do the same)–are responses to Democratic claims, not the affirmative reasons for the Republican course. And his fifth–the one he condemns as “most contradictory and least conservative”–is one that I don’t recognize and don’t recall hearing anyone make: that “the court’s supposedly fragile legitimacy is endangered” if the vacancy is filled before the election.

Will’s second reason is closer to the mark: that President Obama’s “demonstrated contempt for the Constitution’s explicit text and for implicit constitutional manners” justifies the Republican course. But here again Will presents the reason in a hostile manner (“Republicans reciprocating with contempt”) and fails to connect it at all to the broader purpose of preventing the consolidation of a liberal Court majority that would display the same contempt for the Constitution. 

2. Will opposes the “judicial restraint” that he thinks Merrick Garland would practice as a justice. Set aside that Will lumps together the very different matters of deference towards congressional enactments and deference to the regulatory state and that he doesn’t even explore whether Garland could plausibly be expected to break from the four liberals on the Court by practicing judicial restraint on constitutional questions.

If Will thinks that Garland would move the Court in the wrong direction (a conclusion that flows from Will’s positions but that Will never acknowledges), why is he faulting Senate Republicans for not moving to confirm him? Or is it just that Will would prefer that they ground their opposition entirely on arguments against Chevron deference?  

3. Much of Will’s criticism (as the column’s title “Do Republicans really think Donald Trump will make a good Supreme Court choice?” indicates) is directed against Republicans “who vow to deny Garland a hearing and who pledge to support Donald Trump if he is their party’s nominee.” Well, what about those of us who ardently criticize Trump and are hoping that Ted Cruz will win the nomination? Further, if, God forbid, Trump is our next president, there is indeed a substantial prospect (reasonable people can debate the percentages) that he would nominate someone for the vacancy who would not drive the Court decisively to the Left. That’s reason enough to work to keep the vacancy open.

In short, it makes no sense for Will to translate his disgust for Donald Trump (a disgust I fully share) into an attack on Senate Republicans.

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