DO THEY THINK THE NEXT PRESIDENT'S PICK WILL BE MORE CONSERVATIVE?:

In their tossed salad of situational ethics, the Republicans' most contradictory and least conservative self-justification is: The Court's supposedly fragile legitimacy is endangered unless the electorate speaks before a vacancy is filled. The preposterous premise is that the Court will be "politicized" unless vacancies are left vacant until a political campaign registers public opinion about, say, "Chevron deference."

This legal doctrine actually is germane to Garland. He is the most important member (chief judge) of the nation's second-most important court, the D.C. Circuit Court of Appeals, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached -- "deference" in the name of "judicial restraint" toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language. 

In his record of deference, Garland resembles two justices nominated by Presidents George W. Bush and Ronald Reagan, respectively -- Chief Justice John Roberts and, even more, Scalia, who seems to be more revered than read by many conservatives. Garland's reluctance to restrict the administrative state's discretion would represent continuity in the chair he would fill. Furthermore, Garland's deference is also expressed in respect for precedents, which include the 2008 Heller decision. In it, the Court (with Scalia writing for the majority) affirmed that the Second Amendment protects an individual's right to bear arms.

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