March 22, 2016 at 4:30 pm EDT | by Richard J. Rosendall
Merrick Garland and Blacktracking
Merrick Garland, blacktracking, gay news, Washington Blade

U.S. Supreme Court nominee Merrick Garland (Photo public domain)

“Blacktracking,” a word coined by comedian Bill Maher, means “The act of changing one’s mind because President Obama agreed with you.” The latest example of blacktracking is Senate Republicans refusing to act on the nomination of Chief Judge Merrick Garland of the U.S. D.C. Circuit to replace Antonin Scalia on the Supreme Court, despite having previously praised him, solely because Obama picked him.

Our president gets it from both sides. The right treats him as illegitimate and opposes him relentlessly, then calls him a despot when he resorts to his executive authority. The left constantly suspects him of selling them out, on the theory that anything short of giving them exactly what they want when they want it is betrayal.

This is the new Manichaeism, where the world is all light versus darkness, with no shades of gray and no room for compromise. It threatens to rip our country apart. The right is by far the more destructive, so I will start there.

Republican justifications for inaction on Garland do not withstand inspection. They claim the people should have a say first, despite the people having elected Obama twice to four-year terms. They say the “Scalia seat” must be filled with a like-minded justice, despite George H.W. Bush having replaced liberal Justice Thurgood Marshall with the conservative Clarence Thomas. The only principle involved is their pretense that elections only count when they win. Oh, and now the National Rifle Association gets a veto. Can you say farce?

The president addressed the merits and the politics brilliantly by naming an experienced, moderate judge highly regarded in both parties, whose admirers range from attorneys who have dealt with him to students he tutors at J.O. Wilson Elementary in Northeast D.C. If the Senate confirms, we get a modest, process-minded justice who focuses on the facts and respects precedent, in contrast to the arrogant, results-driven ideologue he would replace. If Mitch McConnell and his do-nothing caucus remain intransigent, they risk their Senate majority.

Sen. Bernie Sanders, who soldiers on despite the waning plausibility of his presidential aspirations, said he would withdraw Garland’s nomination, echoing leftists who suspect a nefarious deal between Obama and the GOP to block a more progressive option. This disrespect was unsurprising coming from Sanders, who admitted last week that he only ran as a Democrat for the media coverage.

Of course many of us want more diversity on the court. Obama, in fact, has named a large number of minorities and women to the federal bench, including 11 gay judges, enriching the pool for future vacancies. But GOP obstruction poses a particular challenge. By putting the ball in the Republicans’ court with a sterling choice, Obama spotlights their nihilism.

The Blade reports that Garland joined decisions in four cases that went against gay plaintiffs. But it also quoted people like Paul Smith, who successfully argued the Texas sodomy case before the Court in 2003: “I know Judge Garland well and he doesn’t have the slightest anti-gay bias…. Nothing in these cases causes me concerns about his ability to rule fairly and on the law in cases involving LGBT people or claims.”

If we care only about results and not a fair process, courts lose the trust and respect on which they depend. With a leading presidential candidate inciting mobs, liberals who claim to be more responsible cannot threaten to undermine the president if they don’t get their preference. A prominent attorney I know once referred to Scalia as a thug in a black robe. Surely the remedy cannot be merely to replace him with one who will do our bidding.

Progressives should spend less time on conspiracy scenarios and more on retaking the Senate. For all his faults, Chuck Schumer would be vastly better than the current majority leader.

The president has named a superbly qualified, scrupulous, evenhanded judge. Not a mere partisan operative, but a judge. Obama is the statesman, neatly flaying the vandals across the aisle by his example. But if his final judicial legacy is to be more than an elegant Rose Garden ceremony, the stark contrast between his faithful conduct of his office and their dereliction must be driven home repeatedly between now and November.


Richard J. Rosendall is a writer and activist. He can be reached at

Copyright © 2016 by Richard J. Rosendall. All rights reserved.

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