President Barack Obama’s choice of Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, to replace late Justice Antonin Scalia on the Supreme court is not the nominee the left was dreaming about last month. Any justice who has won the praise of neocon Senator Orin Hatch and Fox News should give any progressive or liberal pause.
And there is plenty of evidence that some of our rights would be further eroded if Judge Garland is confirmed which, at the moment, seems unlikely.
While Judge Garland is hardly a conservative, his rulings in criminal justice cases are cause for concern:
Garland’s record is particularly troubling when it comes to his deference to police and prosecutors, including the suppression of evidence allegedly obtained by way of an unconstitutional police search:
- In 2008, Garland did not join part of an en banc opinion finding that police, stopping a man on reasonable suspicion that he had committed armed robbery, undertook an unconstitutional search by unzipping his jacket without permission and without probable cause.
- In 2007, Garland joined a majority opinion backing the police search of a car that discovered a loaded pistol. The police spotted two men peeing in public, and then peeked inside and spotted an open container of suspected alcohol. The majority ruled that the search was constitutional because it was incident to an arrest, which in this case would have been justified for public urination. But that arrest came only after the gun was discovered. A dissent warned that the ruling “finds no basis in Supreme Court precedent or in logic and imperils the constitutional right against unwarranted intrusions,” setting forth a broad new rule that “whenever a police officer has probable cause to arrest a suspect, the officer may conduct a search incident to the possibility of a later arrest so long as the officer later ratifies the search by making the arrest.”
- In 1999, Garland dissented from a majority opinion ordering a new trial because a prosecutor had misstated critical evidence during the closing argument in a drug case. He wrote that it was “inevitable that trial lawyers will suffer from innocent misrecollections” and that judges should rely “on the self-corrective nature of the adversary system, combined with instructions from the court, to police all but the most egregious of these kinds of errors.”
- In 2003, Garland and two conservative judges ruled ruled against Guantánamo prisoners challenging their detention in federal court, finding that the courts lacked habeas corpus jurisdiction. From a civil liberties perspective, denying the right of someone detained by the government to have that detention reviewed by a judge is profoundly unsettling. Goldstein argues, however, that the move doesn’t necessarily reflect his ideological predispositions: No other member of the court called for rehearing the case before all the circuit judges, known as an en banc review; it may very well have been a response to what was then binding Supreme Court precedent. The Supreme Court later overruled the decision.
For all of Justice Scalia’s faults, he was a big supporter of the 4th and 6th amendments. It’s also been pointed out that Judge Garland is pretty much a blank slate on mass incarceration, the Eighth Amendment and abortion. Nor will he bring any diversity to the court. He is a 63 year old white, straight, Harvard educated, former prosecutor from Chicago. He is Jewish but so are Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
The Young Turks Cenk Uygur presents a good case for why the left should be strongly opposed to Merrick Garlands appointment to the Supreme Court.
The current obstructionist Republican Senate is pretty much dug in on not giving this president his choice. The last time a Republican held Senate confirmed a Supreme Court justice nominated by a Democratic president was 120 years ago, as our friend curmudgeon noted . But who knows what they will do after the November election. If a Democratic wins the White House, they may hedge their bets, call Obama’s bluff and confirm Judge Garland.
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