Ed Whelan has already addressed the major logical problems with George Will’s latest column, but I wanted to point out a couple factual errors in his argument against opposition to Garland.
The first error is Will’s contention that Garland is the “most important member” of the D.C. Circuit because he is “chief judge.” What Will apparently doesn’t know is that the position of chief judge has nothing to do with legal acumen, influence or even popularity. It’s a primarily administrative position and, in the words of the D.C. Circuit’s internal operating procedures, is “a position filled by the most senior judge under the age of 65 at the time the vacancy occurs.” Length of days may give you wisdom and understanding, as the book of Job says, but it also disqualifies you for the title of “Chief Judge.”
The second error comes in Will’s assertion that Garland’s view of deference “resembles” Scalia’s and that replacing Scalia with Garland on the Supreme Court “would represent continuity.” Well.
To be sure, Scalia favored Chevron many years ago, albeit with qualifications. In a 1989 address at Duke Law School, Scalia explained that he tended to apply Chevron’s two-step deference – first determining whether a statute is ambiguous and then deferring to the agency’s reasonable interpretation of the statute – by stopping after the first step. As Scalia himself explained, “[o]ne who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevrondeference exists.” Scalia’s textualism, in other words, sharply constrained the extent of Chevron deference Scalia was willing to grant. Unless Garland has suddenly become a textualist, that difference alone distinguishes the two jurists’ approach to deference.
Scalia’s separate opinions in U.S. v. Mead Corp. (2001) and Perez v. Mortgage Bankers Assoc. (2014) reveal his further movement away from agreement with Chevron. He questioned in his Mead dissent “whether Chevron was faithful to the text” of the Administrative Procedure Act, “which it did not even bother to cite.” He elaborated on this view in a separate concurring opinion in Perez, noting that the APA “contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations” and that the Supreme Court’s Chevron decisions are “[h]eedless of the original design of the APA[.]” Ironically, although Will asserts that Scalia is “more revered than read” among conservatives, he appears not to have read either of these opinions.
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