JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

PART 1

PREFACE TO ANALYSIS OF THE CASE NRA VERSUS JANET RENO

To test the caliber of a person who would serve as a Justice of the United States Supreme Court – the one Court constituting the Supreme Judicial power in the Land and constituting, as well, the third essential Branch of Government, as established by Article 3, Section 1 of the United States Constitution – which says, in pertinent part, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” – we do look to that person’s intelligence certainly. But great intelligence, while certainly a necessary characteristic of a Justice, does not, of itself, a great Justice make.

Much has been made and, undoubtedly, will continue to be made of Judge Garland’s formidable intellectual prowess. A litany of Judge Garland’s intellectual gifts is a continuous refrain we hear from the Judge’s benefactors and proponents. But, when recited in a vacuum, as it invariably is, such praise amounts to little more than empty rhetoric.

Of course a person who is gifted with great intelligence – when such intelligence is also coupled with and tempered by collegiality – another quality often attributed to Judge Garland – would seem to be a most suitable candidate to serve on the U.S. Supreme Court. But, is such a person really suitable to serve as Justice on the highest Court of the Land? If a person is indifferent to or contemptuous of our Nation’s Bill of Rights ought that person serve on the highest Court of the Land if, on balance, that person has so many strong qualities, skills, and attributes to be brought to the high Court? We do not believe so.

For, such a person, who is indifferent to, places minimal emphasis on, or is altogether contemptuous of our sacred Bill of Rights, is a person who is capable of doing incredible damage to the well-being of a free Republic if confirmed by the U. S. Senate to sit on the highest Court of the Land. For the decisions of the U.S. Supreme Court Justice – even those of a dissenting Justice on the high Court – can have a decided and decisive impact – for good or ill – on our Nation’s institutions, on the continued presence of our Nation’s core values, on the nature of the education of our children, and in the well-being of every American citizen.

Thus, we must look to other aspects of a person to ascertain whether, for the good of the Country and for its citizens, that person is best suited to be ensconced as a Justice in our third Branch of Government and therein do service on behalf of the American People – for life or until that Justice otherwise decides, as did Justice Sandra Day O’Connor and Justice David Souter, to retire from the high Court. The work of a Justice becomes so much more important when the other Two Branches fall short – all too often, far short – of their duty to the Nation, to its People, and to the Bill of Rights of the U.S. Constitution. So, we must ask: while character and integrity of a person are certainly critical factors for consideration, along with a perceptive mind and keen intelligence, to what does that person’s character and integrity, perceptiveness and intelligence, as a Jurist extend? Does that person exhibit reverence to and uncompromising devotion toward our Bill of Rights? Or, does that person consider our Bill of Rights dispensable?

The first Ten Amendments that comprise our Bill of Rights are, together, the one critical component of the U.S. Constitution that operates as the ultimate restraint on the power of the federal Government and on its standing army to suppress the Nation’s citizenry. The Bill of Rights establishes, in no uncertain terms, that such power and authority the federal government exercises is limited and is granted to the government by the American people in whom absolute power resides and for such period of time that the federal government and its standing army do not forget in whom ultimate and absolute power resides. Thus, a person’s character and integrity, perceptiveness and intelligence are critical factors for consideration but they must be tied to a Jurist’s philosophical attitude toward the American citizenry’s Bill of Rights.

So, how does Judge Merrick Garland fare, apropos of one clear and unequivocal right of the people – the Right of the People to keep and bear arms. The case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000) offers a clear, unmistakable, and disturbing clue. The case was decided by a three Court panel that consisted of Judges, Sentelle, Tatel, and Judge Garland, the last of whom is President Barack Obama’s nominee, whom the President has nominated to replace the late Justice, Antonin Scalia, on the high Court.

The decision in the Reno case wasn’t unanimous. Judge Tatel wrote the opinion of the Court and Judge Garland agreed with it. Judge Sentelle was the lone Judge, of the three who decided the case, who dissented from the majority opinion. The two member majority, consisting of Judges Tatel and Garland, affirmed the decision of the District Court, for Defendant Appellee, Justice Department Attorney General Janet Reno, against Plaintiff Appellant, NRA, dismissing NRA’s complaint.

Keep in mind that, even though Judge Garland did not write the opinion of the Court, the fact that he signed on to it means he agreed with both the decision of Judge Tatel and with Judge Tatel’s reasoning in it. What does that mean? Just this:

Had Judge Garland agreed with the decision but disagreed in whole or in part with Judge Tatel’s reasoning, Judge Garland would have written his own concurring opinion; and had Judge Garland disagreed with the decision, then the decision of the District Court would have been reversed and Judge Tatel’s majority opinion would have been a minority dissenting opinion. The two members, Sentelle and Garland, would then have decided in favor of Plaintiff Appellant, NRA, against Defendant Appellee, Janet Reno, thereby reversing the decision of the lower District Court. But that did not happen! The NRA lost and so did those Americans who live in the District of Columbia, and by extension, so did Americans who live throughout the United States because of the impact that a decision of the U.S. Court of Appeals for the District of Columbia Circuit often has on the rest of the Country. The decision in the Reno case has general application beyond the District of Columbia. Moreover, other United States Circuit Courts of Appeal give deference to a decision of the United States Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals for the District of Columbia Circuit is considered the most influential Court in our Federal and State Court System second only to the United States Supreme Court itself.

In the next article we look at the particulars of the Reno case. You will come to see that, although, President Obama, argues, as do others who support the President’s nomination, that Judge Garland is a brilliant, thoughtful, meticulous jurist, Judge Garland’s reasoning, as an extension of Judge Tatel who wrote the opinion, is both legally and logically suspect in the Reno case. The reasoning is fraught with legal and logical errors.

Of late, we have heard from Vice President Joe Biden, Senate Minority Leader, Harry Reid. Even a few – very few – Republican Senators have chimed in on behalf of Judge Garland. But the U.S. Senate should hold fast, and deny a confirmation hearing. Why do we say this? We say this because Judge Garland, sitting on the high Court as Justice Garland, would change the composition of the Court, and we are not talking here of the obvious change in numerical composition – back to the seeming “magic number, nine.” We are talking here of  substantive and substantial compositional changes in the temperament of the high Court; a quantum change in the manner in which the new majority of Justices – Ginsberg, Breyer, Sotomayor, Kagan, and Garland – would decide cases; the rationale the new majority would use; the peculiar legal and logical tests the new majority would employ; the upheavals to Justice Scalia’s legacy on the high Court the new majority would make; of the cases that the new majority would overturn; and a reduction in the emphasis on our National Sovereignty and on the U.S. Constitution in favor of a new international perspective the new majority would introduce. How do we know this?

Analysis of actual case law always elicits the truth – the proof of the pudding. So it is that those who trumpet the greatness of Judge Garland do so without bothering to look at the cases he decided during the Judge’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit. It is what Judge Garland’s supporters don’t say about Judge Garland that is worrisome. They don’t discuss the cases he decided and the legal and logical tests he employed in rendering those decisions. For what a person does as a Judge — that Jurist’s ideology and philosophy and methodology of reasoning — goes with him when that Judge sits as a Justice on the U.S. Supreme Court.

Truth always trumps rhetoric. Rhetoric is often eloquent, even effusive. Truth is often blunt; not pretty; it goes down hard. In the ultimate analysis, though, truth always trumps rhetoric. A pity that truth, unlike rhetoric, is something in consistently short supply in the realm of politics.