Jessica Mason Pieklo, best known for pushing pro-abortion falsehoods under the guise of legal expertise, is at it again. At Rewire (formerly known as RH Reality Check), she complains that “Senate Republicans’ refusal to do their jobs” has given Barack Obama’s judicial nominee Merrick Garland “the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment.”
Garland, you may recall, hasn’t ruled directly on abortion, but he did vote to deny Priests for Life an en banc hearing in its case against the Obama Administration’s contraception mandate, effectively preserving an earlier ruling in favor of the mandate. He’s also lavished praise on Justice Harry Blackmun, author of Roe v. Wade, and formerly clerked for Justice William Brennan, a “living Constitution” proponent instrumental in shaping the “privacy” rationale that led to Roe. Seventy-five percent of Garland’s law clerks have gone on to work for judicial activists like Ruth Bader Ginsburg and Elena Kagan, while just a quarter of them went on to work for originalists.
In addition, President Obama is pro-abortion and has said all of his nominees would uphold Roe—a promise he may have gone out of his way to assure Planned Parenthood CEO Cecile Richards of, as she was seen entering the White House minutes after Obama concluded his announcement of Garland’s nomination.
Pieklo completely ignores all that, instead asserting without evidence that Garland “is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness,” a “moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process.” Right, because you say so.
She writes that refusing to consider Garland in light of all this is “an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us”:
It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit.
As my colleague Adam Peters has explained, the Constitution simply charges senators with the duty of “advice and consent” to presidents’ judicial nominees. Nowhere does it specifically mandate hearings, meetings, or votes. So categorically refusing the judicial nominees of a president who has made clear he selects them based on unconstitutional criteria is doing their job.
Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.
Nonsense. Yes, the democratic process chose Obama in 2012… and then it gave the Senate back to pro-life Republicans in 2014. If we’re supposed to take either election as a mandate, the more recent one logically takes precedence.
Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority […] And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.
Even after years of thinking we’ve seen the worst that abortion advocates have to offer, the dishonesty and hypocrisy here are astounding; “investing in the federal courts as a partisan tool” is the abortion movement’s number-one priority! The broad, overwhelming consensus among abortion supporters is that the voters do not have any right to decide abortion policy for themselves.
It started with early-term abortion itself in Roe v. Wade, effectively took over late-term abortion in Doe v. Bolton and the attempts to judicially invalidate the partial-birth abortion ban, and today there is virtually no aspect of abortion policy abortion advocates will not sue when democracy doesn’t go their way: clinic regulations, dismemberment abortion bans, waiting periods, informed consent, Planned Parenthood tax subsidies, even ballot initiative votes that don’t go their way. Heck, Pieklo herself even defended a lawsuit to silence pro-life speech she didn’t like.
Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.
Vacancies are far from ideal, but waiting for judges who will eventually do the job right is still preferable to seating judges chosen because the president trusts them to make decisions based on something other than the law.