Senator Kirk Can’t Whitewash Merrick Garland; The Record Speaks For Itself

By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli

The Scalia Chair
The Scalia Chair
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -( Senator Mark Steven Kirk, Illinois Republican, urges Republican colleagues to “man-up” and just cast a vote on Obama’s nominee for the U.S. Supreme Court, Judge Merrick Garland, whose views on America’s Constitution, according to Senator Kirk, are “a lot like Justice Scalia.”


Not even Obama has the audacity to suggest that Judge Garland’s ideology and jurisprudence are anything even remotely like that of Justice Scalia.

Indeed, even the New York Times admits that, ideologically, Judge Garland is well to the left of Justice Anthony M. Kennedy.” See, the NY times Article published, March 17, 2016, titled, Where Merrick Garland Stands: A Close Look at His Judicial Record.”   And, we know that Justice Kennedy, the “swing-vote,” stands ideologically well to the left of Justice Scalia. So, who is Senator Kirk kidding?

We know that Judge Garland has little or no regard for the sanctity of the Second Amendment. So, how is it that a United States Senator, a Republican at that, would support Obama’s call for Senate action on Obama’s nominee for the U.S. Supreme Court? Might there be something about Senator Kirk that doesn’t quite ring true? Specifically, we were curious as to Senator Kirk’s own position on the Second Amendment. So, we checked. What we have found is disconcerting to say the least but does much to explain Senator Kirk’s support of Obama’s nominee for U.S. Supreme Court Justice. We would suggest that Senator Kirk, himself, “man-up,” and admit to the American public he is a hypocrite who is deliberately leading both the American public and Congress astray by urging his Republican colleagues to cast a vote on Obama’s nominee for the U.S. Supreme Court.

It turns out that NRA gives Senator Kirk, the Republican, a rating of “D.”  He does beat Senator Bernie Sanders, who remarks that NRA currently rates Sanders, “F.” A “D” rating by NRA though, is hardly something for a Republican U.S. Senator to be proud of. Not surprisingly, Senator Kirk would prefer to keep that fact quiet. In fact, in 2010, NRA rated Kirk “F,” according to another weblog. It turns out that Senator Kirk supported the Brady Bill, and was, apparently, the only Republican who voted for the 2013 ban on rifles that were considered “assault weapons.”

Senator Mark Steven Kirk rated "F" by the NRA
Senator Mark Steven Kirk rated “F” by the NRA

Indeed, the Christian Monitor, in a 2013 article, referred to Senator Kirk as Obama’s “quiet ally.”  But, even the Christian Monitor could not have envisioned at that time how portentous its 2013 comment would be. For, three years later Senator Kirk is now lending his support to Obama’s nominee, Judge Merrick Garland, thereby actively defying Republican Senators Mitch McConnell and Chuck Grassley, and, in fact, going to war against the Republican Party, by operating in the background as Obama’s “quiet ally.”

Senator Kirk’s assertion that Judge Garland is of the same ideological bent as the late Justice Scalia is an abominable lie. Senator Kirk certainly knows the assertion to be untrue and he is unashamedly fomenting an outrageous lie. Apparently, it is okay, though, to assert a bald-faced lie to the American people to accomplish a desired goal. Republicans like Senator Kirk, who infect the Republican party with schemes poisonous to the well-being of the Republic and destructive to our sacred Bill of Rights, give cover to Obama, who can then plausibly and piously argue: see, even Republicans understand I intend to safeguard Americans’ Bill of Rights, and that I will, especially, safeguard and defend Americans’ Second Amendment right through commonsense actions and commonsense nominations and appointments to the federal courts.

One thing is clear: if Judge Garland secures a seat on the U.S. Supreme Court, the tenuous balance that existed for some time between the Court’s right-wing Justices and the Court’s left-wing Justices will be lost. The Court will swing violently to the left and that will be reflected in the Court’s decisions.

Consider what one reviewer in a recent New York Times article – titled, What Do You  Need to Be a Justice?” – had to say.

Ian Millhiser, senior fellow at the Center for American Progress, said, in his NY Times Op-Ed, “Some of the court’s worst decisions were the product of rigid ideology. But many are rooted in the fact that the justices in the majority lacked what President Obama said he was looking for in a nominee: ‘an understanding of the way the world really works.’”

An “understanding of the way the world really works?” Millhiser took that quote from the SCOTUSblog, which posted certain remarks of Obama, supporting his nomination of Judge Merrick Garland to the U.S. Supreme Court.

Explicating one of three points he was looking for in his nominee, Obama said: “. . . a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook.  It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing timesThat, I believe, is an essential element for arriving at just decisions and fair outcomes.”

On a cursory analysis this may sound reasonable. But let’s extrapolate what Obama is really saying here. He is saying that U.S. Supreme Court decisions should no longer be decided merely through an application of America’s own case law; its own history; its own precedent. Rather, those who sit on the high Court should decide a case in terms of how a decision impacts people and nations around the world and the manner in which a particular decision reflects the values in the world, among many cultures, today, not simply those values of our Nation, apropos of our unique history, our own culture, our own laws.

Obama is arguing for a cosmopolitan approach to U.S. Supreme Court decision-making.

Obama’s ideal candidate for the U.S. Supreme Court manifests a view for deciding cases also held by the left-wing U.S. Supreme Court Justice, Stephen Breyer, as laid out methodically and comprehensively in his book, “The Court and the World: American Law and the New Global Realities.” Justice Breyer’s jurisprudence is a mélange of laws, values, social mores, and ethical systems that extend well beyond a consideration of our own Constitution, our own laws, our own precedent. Justice Breyer’s  jurisprudence – one reflected in the liberal wing of the U.S. Supreme Court – is an anathema. It undermines our Constitution, our laws. It undercuts the very sovereignty of our Nation and the sanctity of our Bill of Rights.

What is noticeably lacking in Obama’s praises of Judge Garland Merrick and in Obama’s recitation of the factors he deems important in an individual who sits on the high Court is any mention of the need to consider how the core of our rights and liberties, codified in the Bill of Rights of the U.S. Constitution, is to be protected – indeed, that the core of our fundamental rights and liberties ought be protected at all. Apparently, Obama doesn’t consider our Bill of Rights to be particularly important in this new age, in this new world in which the very concept of the ‘Nation State’ is perceived as a relic, eventually to be discarded in favor of a neo-corporate, financial world union.

We know, of course, that the values expressed in America’s Bill of Rights are not universally emulated by many Western Countries. In particular it is abundantly clear that America’s Second Amendment, far from being praised by other Countries, especially those comprising the EU, is often disparaged. But, it is disparaged in part, no doubt, because in no other Country in the World does a nation’s government accept and respect the idea that a nation’s government exists only by grace of the people, of the nation’s citizenry. America’s Second Amendment, however, makes absolutely clear that the federal Government exists only by the grace of the American people. The federal Government does not “own” the American people. We are free citizens in a free Republic, not enslaved subjects residing in an autocratic realm. The federal Government cannot dispense with our Bill of Rights; nor is it permitted to erode the fabric of our Nation’s sovereignty through international treaties and conventions that the American people are never aware of, nor their representatives in Congress completely privy to.

America’s Bill of Rights – certainly the Second Amendment – is perceived by the left-wing of the U.S. Supreme Court as representing ideas and values no longer reflective of the modern age. But, the founders of our Republic were no fools.

Bill of Rights
America’s Bill of Rights – certainly the Second Amendment – is perceived by the left-wing of the U.S. Supreme Court as representing ideas and values no longer reflective of the modern age.

They knew that the rights and liberties set down in stone in the Bill of Rights were “constants” that never change, never become obsolete, and must never change or be perceived as obsolete if our Republic is to continue to exist in the form envisioned by our founders. Justice Scalia knew this, respected this, and his decisions reflected that principle – a principle omnipresent in his decisions.

Justice Scalia believed that U.S. law must dictate and inform all U.S. Supreme Court decisions and that the Bill of Rights – all ten of them – must never be compromised or be considered relevant only to a bygone era. The left-wing of the high Court does not agree with this. They hold to the idea that Americans’ rights and liberties only have meaning relative to a particular era – that Americans’ rights and liberties are not “constants” applicable to all eras. That idea percolates through their legal opinions, and is reflected in their entire jurisprudence.

The notion that our Bill of Rights transcends all time is considered an aberration and antithetical to the reasoning of the left-wing of the high Court because that notion is not compatible with “the way the world really works” today, as Obama says. All the more reason, then, for the U.S. Supreme Court to hold fast to the principle that Americans’ rights and liberties are “constants,” never-changing absolutes, as our founders perceived them and meant for them to be as applied to the continued existence of our Nation State as a Sovereign Nation State and as a free Republic – never subordinated to another nation or subsumed into a larger political or economic union, like the EU.

Americans’ sacred rights and liberties are never to be seen as outmoded. They are never to be cast aside when deemed, by some on the high Court, to be incompatible with the “way the world really works” – with global realities, according to Justice Stephen Breyer, as laid out in his book, and as echoed by President Obama in his praises of Judge Merrick Garland.

Judge Garland is certainly not cut from the same cloth as Justice Scalia. If Judge Garland does acquire a seat on the high Court as an Associate Justice, he would definitely fit in with such fellow travelers as Justices Breyer, Ginsberg, Kagan, and Sotomayor.

Certainly, that is what President Obama, and, apparently, one “Republican” Senator, Mark Steven Kirk, would like very much to see.

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will ford

kirk is a putz pud