“Do Republicans really think Donald Trump will make a good Supreme Court choice?” It’s a pretty good question. It’s also the title of a column by one of the Republican Party’s most venerated thinkers, Washington Post columnist George Will.
Senate Republicans’ explanations for “their refusal to even consider Merrick B. Garland radiates insincerity,” according to Will. His party’s actions also risk holding the open seat on the Supreme Court vacant until “a stupendously uninformed dilettante” gains the power to make nominations. “If Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do,” Will rather archly concludes.
Will’s disagreement with the GOP’s just-say-no approach to Garland is especially significant because Will’s own view of the Constitution places him well to the right of the late Justice Antonin Scalia, who Garland hopes to replace. Indeed, it probably places him well to the right of every single sitting member of the Supreme Court.
Among other things, Will praised the Supreme Court’s anti-canonical decision in Lochner v. New York, a decision frequently taught to law students as an example of how judges should never behave, in a 2015 column. Lochner struck down a New York law preventing bakeries from overworking their employees, and its reasoning formed the basis for later decisions striking down minimum wage laws and virtually eliminating the right to unionize. It was overruled in 1937.
The Lochner opinion that Will hopes to bring back is considered to be so far outside the acceptable range of legal opinions that conservative Chief Justice John Roberts labeled it “discredited” in a recent judicial opinion that attacked Lochner at length. The even more conservative Justices Scalia and Clarence Thomas both joined Roberts’ opinion.
So Will would take the law in a radically different direction than Judge Garland, a moderate liberal well to Scalia’s left. Yet even Mr. Will appears to concede that it is time for Republicans to give up their opposition to Garland and take the offer that is on the table.