DetNews peddles empty cliches on Supreme Court nominee

The Detroit News editorial team on Sunday called for President Obama to name someone “open-minded” to replace Justice John Paul Stevens on the Supreme Court, a phrase that is as meaningless as it is cliche`. The editorial never defines how one tells whether a justice is “open-minded” or not, of course, and it offers little more than cognitively empty platitudes like this:

But when it is possible, jurists should leave policy-making to the political branches — Congress and the president — and not reach for outcomes that go beyond the clear implications of the language of the law and the Constitution.

No kidding. No one would disagree with this empty phrase, of course, precisely because it is empty. Everyone thinks that justices should stick to the “clear implications of the language of the law and the Constitution.” There is, however, enormous disagreement over what those implications are and what the law actually means. The editorial might as well have said “Judges should do good things instead of bad things.”

The closest the News editorialists come to defining their terms is the praise they give to one known candidate on the short list, Judge Merrick Garland, as an example of a judge with “humility and fortitude.”

Court observers say he would be likely to side with the Supreme Court’s liberal wing often, but his appellate court record shows a willingness to defer to the executive branch in criminal and security issues.

In short, he wouldn’t be predictable vote on every issue that came before the nation’s highest court. If the president can name a justice, whether Garland or another candidate, with this kind of open mind, he will serve the nation well.

So apparently being “open-minded” means showing a “willingness to defer to the executive branch in criminal and security issues.” But the history of this nation shows with absolute clarity the danger to constitutional safeguards if the courts defer to the executive branch on such issues.

In the last decade alone we have seen the executive branch — under both Bush and Obama — claim the authority to arbitrarily suspend habeas corpus in individual cases, something the constitution unequivocally forbids; to imprison American citizens indefinitely without charges; to engage in torture and abuse in violation of both statutory law and America’s treaty commitments; to engage in warranteless wiretapping of American citizens, in undeniable violation of the Fourth Amendment; and much more.

If showing deference to such unconstitutional demands is one of Judge Garland’s virtues, I would argue that he is manifestly unqualified to be on the Supreme Court.