The appointment of Judge Merrick Garland to replace Justice Antonin Scalia on the Supreme Court requires consent by a majority of United States Senators. My approach would be for Judge Garland to meet with every Senator, conduct confirmation hearings, and then schedule a vote before the full Senate. I have searched for case law for opinions written by Judge Garland. I found just two Court of Appeal cases which provided some insight. The first is American Bus Association vs. Federal Transit Administration. In this case, Judge Garland ruled it was constitutional for Congress to grant a special regulatory exemption to a private bus carrier even if anti-competitive. The second case is National Association of Home Builders vs. Environmental Protection Agency. In that case, Judge Garland held the EPA change of a rule regarding lead paint was permissible because it was not arbitrary or capricious. At this point, I don’t know enough about the nominee’s judicial philosophy to tell Kansans how I would vote. As Senator, I will ask Judge Garland these five questions:
• Do you agree that a federal expenditure is permissible only where Congress has appropriated funds for the purpose of the expenditure?
• Would transfer of Guantanamo detainees to facilities on US soil cause removal of their cases from military tribunals to the federal district courts for their criminal trials?
• Do you believe Justice Scalia’s Heller opinion settles the law recognizing the right of an individual to own firearms?
• Would a law requiring immediate disclosure of lobbyist’s contact with a sitting member of Congress violate the right to petition the government for redress of grievances?
• What are your thoughts on using evidence of disparate treatment to prove illegal discrimination?
I remember the nomination of Robert Bork. Those hearings were Senate at its worst. Even if the Senators considered him a poor choice for the Supreme Court, he was a human being and deserved respect. I understand this Republican treatment of Judge Garland is payback. The Democrats deserve it. But our nation needs a full complement of Supreme Court justices and America is entitled to a vote on Judge Garland’s nomination. If he is rejected, then we can move on.