Garland selection proves that to Obama, DC doesn't count

Getty Images

President Obama, in an attempt to show Merrick Garland's "compassion" and devotion to the public good, pointed out that the Supreme Court nominee by "tutoring a young student at Northeast D.C. elementary school each year for the past 18 years." "Northeast" is a code word for disadvantaged.

I found this mention by the president particularly galling, condescending and above all, insulting. It is not that I doubt the judge's sincerity or dedication to those whom he tutors, but when Garland could act as a public servant and expand the individual rights of his students, he chose to write an opinion that excluded them from America's democracy. Tutor, but don't give them the vote.

Garland wrote the majority opinion in Alexander v. Daley. This case was, I have written previously, the District of Columbia's Brown v. Board of Education. Argued before a three-judge panel led by Garland, it put forth the legal argument that "denial of the D.C. community's right to be represented in the U.S. Congress violates the rights of Equal Protection, Due Process, a republican form of government, and the privileges and immunities of national citizenship — all critical democratic guarantees of the U.S. Constitution."

These words were written by American University law professor Jamin Raskin in a law review article. He eloquently said the same in court. He was joined by then-Assistant D.C. Corporation Counsel Walter Smith and Attorneys Charles Miller, Evan Schultz and Tom Williamson from the law firm Covington & Burling.

Garland wrote the opinion that crushed D.C.'s hope of joining America as first-class citizens. Relying on the condition that D.C. citizens were not residents of a "state," we were then automatically denied the right to be represented in the U.S. House and Senate. As I said in a previous column, this was a classic illustration of voter suppression.

Garland sought to legitimize and deem legal that over 650,000 citizens of this country should continue to go vote-less and unrepresented in our national legislature. No other country on the globe deprives the residents of its own capital the right to be represented in their national legislature. But according to Garland, this odious and undemocratic practice should continue.

(It should be noted that in this 2-1 decision, U.S. District Court Judge Louis Oberdorfer, a former assistant attorney general in the Kennedy Justice Department, forcefully dissented from the majority opinion. There was an attempt by the plaintiffs to appeal this decision to the Supreme Court, but the court refused to grant certiorari. However, in an unusual move, then-Justice John Paul Stevens publicly noted in a dissent that he had wanted to hear the case.)

In seven-and-a-half years, Obama has consistently demonstrated an indifferent and callous disregard and disinterest in the un-American status of where he now lives and, we are told, plans to continue to live. He has never spoken to D.C. about D.C. and its colonial status. It is not surprising that Garland's opinion in this case would not cause the president any discomfort. You see, when it comes to Washington, it is not of the record. D.C. does not matter. The opinion that Garland wrote is in no way disqualifying; it's not even brought up.

Garland was very careful not to be on D.C.'s side because, in my opinion, he wanted to be seen as a "moderate." Being a moderate and noncontroversial was what Garland has always sought to be. Striking a blow for democracy and inclusion was not his department. In fact, his plan, I believe, was to make very sure that no paper trail would in any way thwart his chance of being on the Supreme Court. Voting with D.C. and for D.C. was "too liberal." That is a place Garland never wanted to be. An opinion for fairness and against exclusion would be too risky, so Garland took the easy way out and opted for the safe route.

Garland is from Chicago. He decided to abide by the dictum of former Mayor Richard J. Daley: "Make no waves, back no losers." The right to be represented fully and legally in Congress should be a rallying cry and guaranteed by law. To Obama and Garland, however, this is an issue to be ignored and forgotten.

I admire Garland's educational and professional credentials, but his opinion on this one case should have disqualified him from any consideration to be on the highest court in the land. Obama's decision to nominate him once again starkly showed that in his mind and heart, we, the citizens of D.C. continue not to count. Obama, who should have been Washington's champion, stands on the sidelines year after year, looking the other way.

And where is Del. Eleanor Holmes Norton (D)? Our elected representative is silent and mum. And where is Mayor Muriel Bowser (D)? Hiding from view, as usual. What a sad, tragic and pitiful picture.

One final comment: D.C. Councilmember Elissa Silverman (I), who by background and philosophy one would think would want to comment on this appointment, chose to be "too busy to comment," as her office mentioned to this author. As long as the elected establishment remains deaf and mute when slapped in the face, nothing will change.

Plotkin is a political analyst, a contributor to the BBC on American politics and a columnist for The Georgetowner.