Judge Garland’s “judicial restraint”

The mainstream media, serving its traditional role as tool of the Democratic Party, is breathlessly pushing the talking point that Judge Merrick Garland is a practitioner of “judicial restraint.” Robert Barnes of the Washington Post peddles the theme here. David Savage, writing for the Los Angeles Times, does so here.

Greg Weiner demonstrates, however, that the “judicial restraint” displayed by Judge Garland consists of deferring to the administrative state, not to Congress. Decisions by administrative bodies reflect the will of unelected bureaucrats. Congressional enactments represent the will of the people.

Thus, Garland’s “restraint” is in the service of an increasingly aggressive state. It is not democratic. Stated differently, Garland’s approach is fundamentally left-wing.

Here’s how Weiner puts it:

Deference to the administrative state does not advance th[e] principle [of Republican government], and Chevron deference [i.e., deference to administrative bodies] and deference to Congress are consequently neither legally nor politically equivalent. On the contrary, without a political justification, judicial restraint easily collapses into mere denigration of judges.

The political case is Aristotelian. It assumes that the political life is best for man and that the conditions of human flourishing include making consequential decisions by means of deliberation rather than dictation.

Judicial fiat thus undermines political life. But so, crucially, does Chevron deference insofar as administrative government elevates dictation above deliberation. Executive governance generally does so, and was intended to.

Because Judge Garland’s restraint consists of deference to bureaucrats, on the theory that they are the experts, it is technocratic, not democratic, and therefore classically “progressive.” As Weiner says:

Technocracy is the antithesis of politics: It was the capital-P Progressive dream to suppress political difference by reducing all political questions to administrative questions.

Consider some of the opening words of Franklin Roosevelt’s “Commonwealth Club Address”: “I want to speak not of politics but of government.” There is, to the Progressive mind, a difference. To speak of government was, to Roosevelt, to speak of technical matters on which there was no rational dispute because smart people had resolved them. To speak of politics was to speak of disagreements, which were regarded, in turn, as messy and unreasonable.

It may be that Judge Garland believes both in deference to the administrative state and deference to Congress. The two forms of deference are not logically inconsistent However, to my knowledge, Garland’s supporters have failed to show that he believes in the latter form. Indeed, it’s unlikely that President Obama would have nominated him if his opinions consistently reflected deference to Congress in controversial cases.

In addition, Ed Whelan notes that there is some question as to whether Garland’s deference to administrative agencies is selective — a means, mainly, of ruling in favor of unions.

In any event, Judge Garland’s record of deference to the dictates of the administrative state hardly qualifies him as the “moderate” many want to portray him as. Nor does it support claims that conservatives, who constantly sound the alarm over our anti-democratic administrative state, are being hypocrites in opposing him.