I’ve worked hard to get over Merrick Garland. But Sen. Ted Cruz isn’t making it easy.
Garland, of course, was a judge on the Court of Appeals for the D.C. Circuit when President Barack Obama nominated him to the Supreme Court after Justice Scalia’s death in February 2016.
Senate Republicans, however, vowed to deny any hearing or vote on Garland’s nomination or any other Obama nomination during the last year of his presidency. Thus the nomination languished for 293 days until it expired in January 2017.
Why? Republicans were naturally averse to replacing a conservative justice like Scalia with a justice nominated by a Democrat. They had the power to reject Garland’s nomination, and they used it. There’s nothing overly dramatic about calling Scalia’s seat on the court, subsequently filled by Neil Gorsuch, a “stolen seat.”
But we have to move on, to look forward. I watched virtually all of the first three days of hearings before the Senate Judiciary Committee on the nomination of Brett Kavanaugh to replace the retiring Anthony Kennedy.
Kavanaugh is impressive. His grasp of the law and of Supreme Court rulings is impeccable. He’s unquestionably highly qualified, and he appears destined to be the next Supreme Court justice.
So why did Cruz bring up Merrick Garland?
In his questioning of the nominee, Cruz noted that he had compared Kavanaugh’s record during his 12 years on the circuit with Judge Garland’s record, with these “striking” results:
In legal findings on which both Garland and Kavanaugh voted, they agreed 93 percent of the time. Of 28 public opinions that Kavanaugh authored while Garland was on the same panel, Garland joined Kavanaugh’s opinion 27 times.
And of Garland’s 30 opinions, Kavanaugh joined in 28 of them. Kavanaugh and Garland appear to have a lot in common in terms of how they view the law.
Cruz was trying to invoke a question: “Isn’t it hypocritical for you Democrats to oppose Kavanaugh when he thinks so much like Garland?”
But a more poignant question for Republicans is, “If Kavanaugh and Garland are so much alike, why in the name of the Constitution wouldn’t you give Garland the courtesy of a hearing?!”
Which implies a third question: “If Kavanaugh and Garland have so much in common, what distinguishes Kavanaugh from Garland?”
Besides Kavanaugh’s extensive history as a right-wing political operative, here’s another huge difference:
President Donald Trump has been clear and emphatic: He said that he would nominate justices to the court who would overturn Roe v. Wade.
Of course, no justice can unilaterally “overturn” Roe v. Wade. (Someone should tell Trump how this works.) But during the hearing Kavanaugh was carefully equivocal. He persistently declined to describe Roe v. Wade as anything more than “precedent.” Marbury v. Madison (1803) is “settled law.” Brown v. Board of Education (1954) is “settled law.” Roe v. Wade (1973) is “precedent.” So is the last case the court decided.
In short, citizens who are concerned about a court that forces women to cede back to the government hard-won reproductive rights and decision-making power over their own bodies should be concerned about Kavanaugh.
Garland and Kavanaugh have a significant history of agreement about the law. But Kavanaugh appears to harbor an undisclosed agenda that is at odds with the feelings of the two-thirds of Americans who support Roe v. Wade.
Overturning Roe v. Wade won’t end abortion in America. But it will return us to the pre-Roe, two-tiered system that made abortions much more difficult for the poor and for minorities. And just as in pre-Roe days, women will die from illegal abortions.
Cruz asked Kavanaugh what he thought about Garland. He said that Garland is a great judge, very careful, very hardworking, who reads statute and precedent as written, without imposing personal preferences.
Too bad Cruz and Kavanaugh didn’t tell us this sooner; we might have avoided a divisive, unfair, unseemly episode and preserved women’s right to choose, as well. Now everything depends on the consciences of a few Republican senators. Women’s lives and rights are at stake.