A small business group, stepping into the debate over the Supreme Court nominee for the first time in its history, has emerged as the major roadblock to the confirmation of Merrick Garland while Republicans control the Senate.
The National Federation of Independent Business’s withering analysis of Garland’s record helped move the position of some Republican lawmakers this week from a defensive crouch on the pros and cons of confirming the nomination to outright dismissal.
While Garland was described by many commentators as a moderate in the immediate aftermath of President Obama's nomination announcement, the NFIB was ready to deliver its analysis after weeks of vetting by its legal team.
“We have been vetting ever since his name was mentioned as a possibility,” said the NFIB’s Jack Mozloom. “Extremely discouraging, (as) he sides almost automatically with the alphabet soup of regulatory agencies. The portends are bad.
“This was the reason we felt we could not stay out of this Supreme Court nomination,” Mozloom added.
He confirmed it is the first time the organization has opposed, or backed, a nominee in its 73-year history, but the group had to take a position because the appointment “will tilt the balance of the court for probably a generation.”
Senate Majority Leader Mitch McConnell name-checked the business group, and the National Rifle Association, as he all but said Garland has no chance of being nominated while Republicans control a Senate majority.
Sen. McConnell was responding to a question over whether the Senate might confirm Garland after the election, if Hillary Clinton wins, and even if the Republicans lost their majority.
“I cannot imagine that a Republican would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association and the National Federation of Independent Business,” McConnell said, before mentioning the fact the NFIB has never taken a position on a nomination.
“I cannot imagine a Republican majority Senate, even if it were soon to be a minority, would want to confirm a judge that would move the court dramatically to the left. That’s not going to happen.”
It marked a clear change in position by McConnell, from arguing against the Senate holding hearings on any nominee, to dismissing Garland specifically as a nominee.
“We are very pleased he is using our analysis for a reason to oppose this judge,” said Mozloom on Wednesday.
Mozloom said a combination of factors informed the NFIB when coming to a decision to take a stance, including Garland’s record as a judge on the Washington D.C. Circuit, but also concern over the claimed growing overreach by regulatory agencies.
“Increasingly we found ourselves in court fighting these regulatory agencies who, we believe, were flexing their muscles unconstitutionally,” Mozloom said. “And the Supreme Court is increasingly where big economic decisions are being made.”
The NFIB’s legal center poured over Garland’s extensive record and concluded “he is not a centrist,” said Mozloom.
He cited 16 cases involving the National Labor Relations Board. In 15 of the cases, Garland ruled in favor of labor, said Mozloom, adding the only employer he sided with was the government.
Mozloom said the NFIB approached the vetting with an open mind, and took no position on Senate procedure, or the debate over whether confirmation hearings should be heard.
“We would have preferred if President Obama nominated someone who more closely matched his (the president’s) rhetoric, that is, nominate a moderate instead of activist for big government,” Mozloom said.