In an election year in which three of the four main presidential contenders from the two political parties at least purport to be running against the Washington establishment, President Obama has nominated a quintessential political establishment judge for the Supreme Court.
Judge Merrick Garland is not the radical judicial activist many conservatives thought President Obama might nominate in his lame duck days as a parting and lasting shot to fulfill his contra-constitutional transformation of America. The nomination of Judge Garland is instead a cleverer and subtler attempt to advance the progressive agenda that relies on the extra-constitutional administrative political class now governing and deeply infiltrating American private life, property rights, business, education and even religious beliefs from Washington.
The “centrist” label helps mask the rigidly statist nature of Judge Garland’s judicial philosophy. Even in praise of Garland’s nomination, liberal constitutional law professor Jeffrey Rosen writes:
“Garland’s career has been defined by deference to decisions by administrative agencies. During oral arguments in Americans for Safe Access v. DEA, Garland asked, ‘Don’t we have to defer to the agency? We’re not scientists. They are.’”
Under the statist approach of progressives, the constitutional rule of law has been transplanted by the rule of government “experts,” i.e., unelected bureaucrats within the alphabet-soup named administrative agencies, whose mistakes, corruption and lawlessness are more-and-more front page news, at least in the conservative media.
These “experts” are part of the progressive transformation of American government that began long before Barack Obama was elected president. They are the hallmark of the Washington political establishment whose motto seems to be, “Let our bureaucrats decide.” Mr. Obama has attempted to take this transformation a few steps further through an executive branch that is more completely detached from the Constitution and its legal chains on government.
Judge Garland's nomination, when Americans increasingly view government as corrupt and trust in the courts is at or near record lows, nevertheless underscores the agenda of President Obama. How the Senate responds will tell us a lot about whether they understand why so many Americans are fed up with the political class.
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