An Unlovely Garland

When Senate Republicans rebuffed Merrick Garland’s 2016 Supreme Court nomination, the usual soreheads wailed. So did some unusual ones: The Washington Post’s George F. Will deemed the refusal to accord Garland a hearing “a partisan reflex in search of a justifying principle.” Leon H. Wolf of RedStatecalled Barack Obama’s pick to replace the late Justice Antonin Scalia “a gift that should not be squandered” and urged senators to “confirm Merrick Garland before it is too late.” Quasi-conservative attorney Jeb Golinkin wrote in The Week that Obama “went out of [his] way to appoint someone moderate enough that it would be politically difficult for Republicans to refuse to hold hearings.”

But refuse they did. Senate Majority Leader Mitch McConnell (R-KY), Judiciary Chairman Chuck Grassley, and several of their Republican colleagues weathered media indignation for doing so. Good on ‘em: Garland, now the attorney general nominee, demonstrated at his Senate hearing last Monday that, thanks to McConnell et al, the Constitution dodged a missile.

Now the minority leader, McConnell can’t perform this feat again. Knowing this, he’s pledged to back Garland’s appointment to head the Justice Department. So have many other conservative senators. Other decidedly non-liberal entities and individuals have sent the Judiciary Committee letters of support, including the Fraternal Order of Police, the National Sheriffs Association, Republican former Attorneys General Michael Mukasey and Alberto Gonzales, and Republican former Federal Bureau of Investigation Director Louis Freeh. These observers all consider Garland the most moderate, reasonable top federal lawyer they can get from President Joe Biden. They’re right—and that’s unsettling.

Garland, having worked earlier in private practice and at the Justice Department, became a federal judge in 1997 after Bill Clinton appointed him to the U.S. Court of Appeals for the District of Columbia Circuit. Despite often being called a centrist, he was a steady socially liberal vote and also a union drudge. In the vast majority of principal opinions he wrote regarding National Labor Relations Board appeals, he favored the NLRB’s judgment against an employer. In such cases, he reasoned that courts should let a government agency interpret its own precedent. Yet he almost totally avoided authoring rulings that benefitted management more than organized labor, even when that avoidance meant balking at the determination of the NLRB.

If Garland had been on the court instead of Trump appointee Neil Gorsuch in 2018 when the landmark Janus v. AFSCME was decided, public-sector unions would undoubtedly still have the unconstitutional ability to compel workers to pay union dues. That’s bad enough. What senators discovered about his legal perspective at Monday’s hearing makes the matter even worse.

He was asked, for instance, by Sen. Josh Hawley (R-MO), “Do you believe that illegal entry at America’s borders should remain a crime?” The nominee replied, “I just don’t know the answer to that question. I haven’t thought about it.” Hawley then inquired, “Will you continue to prosecute unlawful border crossings?” Garland answered, “Well, this is again a question of allocation of resources…. I have to admit I just don’t know exactly what the conditions are and how this is done. I don’t know what the current program even is with respect to this. So, I assume that the answer would be yes but I don’t know what the issues surrounding it are.” So, then, Americans can “assume” some measure of border enforcement—in a nation estimated to have around 11 million illegal residents—will continue. Comforting. 

Garland made equally unreassuring remarks on both the First and Second Amendments. After Sen. Chris Coons (D-DE) asked him if government had a role in countering “online misinformation” (sometimes quaintly referred to as constitutionally protected speech). The nominee responded, “I think that every opportunity the Justice Department has to work with members of the Senate to think about how to solve problems and how to craft legislation is one that we should take. I don’t have in mind particular legislation in this area. I do think that an important part of the investigation of violent extremist groups is following their activities online and getting an idea of what kind of information and misinformation is being put out.” That’s swell, but Coons’s express ambitions to restrict free speech—e.g., pressuring social media outlets to “have a policy on climate change misinformation”—could’ve used pushback from a supposed legal eminence like Garland.

Responding to inquiries from Sen. Mike Lee (R-UT), the judge said he believes President Biden “may have a position” on whether gun manufacturers should be held liable for their products being used in crimes. “I have not thought, myself, deeply about this,” he explained. “I don’t think it raises a Second Amendment issue itself—the question of a liability protection—but I have not addressed this in any way and I need to think about this considerably more.” A second’s contemplation would lead any lucid person to realize that unless a gunmaker creates a faulty weapon or is negligent in distributing guns to firearm stores, the gunmaker isn’t responsible for crimes or accidents that take place after legitimate wholesale distribution.

On capital punishment, Garland demurred. When asked by Grassley if the Biden administration will continue the government’s court battle to carry out its death sentence for Boston Marathon bomber Dzhokhar A. Tsarnaev, the nominee responded that he could not comment on a pending case. But Garland did note that Biden opposes executions, adding that “I have had great pause about the death penalty…, about the large number of exonerations that have occurred through DNA evidence and otherwise.… I think a terrible thing occurs when somebody is convicted of a crime that they did not commit and the most terrible thing happens if someone is executed for a crime they did not commit. …[Recently] we’ve seen fewer and fewer death-penalty applications anywhere in the country, not only in the federal government but among the states, and as a consequence, I’m concerned about the increasing almost randomness or arbitrariness of its application when you have so few number of cases. And finally…, the data’s clear that [capital punishment] has enormously disparate impact on black Americans and members of communities of color… I expect it not at all unlikely that we will return to the [pre-Trump] policy” of a moratorium.

Where to begin? First, analysis published by the National Academy of Sciences indicates that handing down a death sentence instead of imprisonment greatly improves the likelihood that a wrongly convicted person will be exonerated. Second, death penalty retentionists are as concerned as abolitionists about “randomness or arbitrariness” when so few death sentences are imposed; resultantly, retentionists want capital punishment to be utilized more often and more consistently. (For further analysis of Garland’s death penalty remarks, see Wednesday’s astute piece by Mike Tremoglie.)

Where election law is concerned, Garland is stuck in the past, particularly regarding “preclearance,” which he called an “important tool.” Preclearance refers to a requirement under the 1965 Voting Rights Act that a number of jurisdictions in the southern U.S. (including Texas) receive approval from the Department of Justice before making changes to their election laws. In the 2013 Supreme Court case Shelby County v. Holder, the outdated and burdensome formula determining whether preclearance should apply was struck down. If Congress comes up with a less onerous formula and the president enacts it, preclearance will be resurrected. But for all the blather about contemporary “voter suppression,” minority voting rights are not currently threatened by any election reforms under consideration anywhere in America. Preclearance is antiquated.

Toward the end of the hearing, Sen. John Kennedy (R-LA) asked Garland whether Title IX of the Civil Rights Act serves as a valid basis to allow biological males who identify as females to compete against girls in school sports programs. The judge’s response? “This is a very difficult societal question that you’re asking here… I’ve not had the chance to consider these kinds of issues in my career so far. But I agree that this is a difficult question.”

But the question is not difficult. The recent introduction of biological males into female sports has rendered many actual girls uncompetitive in athletic matches. The work of diligent researchers like Ryan T. Anderson, Ashley McGuire, and Abigail Shrier makes clear this is a grave problem.

Finally, on racial justice, Garland’s is self-negating. “We do not yet have equal justice,” he told the Senate panel. “Communities of color and other minorities still face discrimination in housing, in education, in employment, and in the criminal justice system.” He was speaking of blacks and hispanics, but as Sen. Tom Cotton (R-AR) pointed out to the judge, the clearest victims of racial discrimination in higher education presently are Asian-Americans. Cotton expressed his dismay that President Biden is not continuing his predecessor’s litigation against Yale University; the suit sought to correct an admissions system wherein Asian-American students were eight times less likely to be admitted than those of other ethnicities in the same strata of academic achievement. Garland simply replied, “I can’t draw any conclusions without knowing the facts of the case.” 

It would be nice if the soon-to-be attorney general did know more basic facts about some of the high-profile subjects he will soon need to tackle, and had the sound judgment to tackle them.

merrick garland






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