Partisans United Against Institutionalists

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Posted: Jan 15, 2022 12:01 AM

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Democrats and Republicans share a problem: They hate judges. Or at least so it appears. One might think this claim is nonsense, considering the emphasis the parties have placed on judicial appointments over the last five years. But it is true. 

As recent coverageop-eds, and media hits commemorating the January 6th riots indicate, the Judge most recently the subject of the Left’s ire is Merrick Garland. Sure, Garland is no longer a judge, but he – at least according to the Left – very much so still acts as one, prioritizing fairness and equity over political victory. 

Indeed, though Garland now sits in the Executive Branch as Attorney General, a role that at the very least appears to be more partisan than his former role in the judiciary, Garland “ha[s] made restoring public faith in the political neutrality of the Justice department his core goal.” So focused is he, according to the Left, on preserving the reputation of the Attorney General position, he has abdicated his duty as Attorney General. Indeed, some on the Left are questioning whether he has the “skill set” necessary to be AG,  with other progressives even “calling for [his] ouster.”

This is quite ironic, given the fervor with which the Left supported Garland’s nomination to the Supreme Court not too long ago. 

Evading the better or best outcome for the sake of preserving the sanctity of an institution is something that should sound very familiar to the political right. It is their main critique of Chief Justice John Roberts. 

In perhaps the most famous example of Roberts prioritizing institutional considerations over substantive outcome, Judge Roberts switched his vote in a landmark case, NFIB v. Sebelius, thus compromising the legal legitimacy of his opinion for the sake of the Court as an institution. In Sebelius, in order to dissuade the notion that five partisan judges were swatting down the landmark legislation of a popular democratic president. 

Roberts felt that he needed to “save the court,” because “a 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics.” Ultimately, Roberts “made the judgment that, if the law were struck down along partisan lines, the institution of which he views himself as the steward would emerge weakened from the resulting public fight.”

 

Decisions like the one in Sebelius have led some in the Conservative legal movement to write that “the conservative legal movement and its various institutional vessels, such as the Federalist Society, have failed conservatism.” It is worth noting however, among the general public, in contrast, John Roberts’ favorability leads all leaders of government institutions.

This is merely one exception, each, where each of these two judges drew the ire of those who put their faith in them by prioritizing the perceived legitimacy of their institution over the desires of their respective parties. But this is a consistency between the two.

The similarities between the approaches taken by Judge Garland and Judge Roberts are striking. Just as Roberts, at the Court, “would prefer not to throw people off of existing programs, or overturn precedents, or strike down entire federal laws, when he can avoid it,” In the DOJ, “Garland is simply trying to uphold past Justice Department precedents.”  For both, a good outcome is the one that changes little about how the government, the law, and the federal bureaucracy operates.

Ultimately, Roberts and Garland are two sides of the same coin. They are career centrist institutionalists that care more about the institution itself than what it sets out to accomplish. Roberts is right of center, Garland is left of center, but both of them have the legitimacy of the institution they serve at the center of their attention. 

Americans hate that. They hate it because they see bureaucracy as evil and they see accomplishing their partisan ends as the point of government's existence. 

However, what these critics forget is that the pendulum always swings in the other direction. No example is more famous than the Democrats’ decision to reform senate procedure on federal court nominations only for that procedure to be used against them in the context of, ironically, Merrick Garland’s own nomination.

Though institutionalism for institutionalisms sake is a stupid endeavor, using systems of government for overtly partisan ends will always come to bite back those who do it. Take it from Merrick Garland, who was scorned by partisan tactics that infiltrated systems of governance, and yet still stands up to the partisans in his party who ask him to use his office as a weapon, instead of as a tool.

Most of all, partisans ought to be thankful to the Garlands’ and the Roberts’ of the world, those who ensure that our government does not become fully political, even in times where these judges wield the power to entrench their institution into long-term partisan outcomes. Alternatively, at the very least, both sides can commiserate about the lacking satisfaction that comes along with centrist institutionalists.

Elliot Fuchs is a consultant, writer, and a student at Georgetown Law School. His legal analysis and political commentary has appeared in many outlets, including USAToday, The New Jersey Law Journal, and Law360.com. Follow him on Twitter @Elliot_Fuchs.





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