Merrick Garland

Merrick Garland: "To the Right of Scalia on Criminal Justice"

"If 'right of Scalia' is what a Democratic nominee looks like, maybe we'll get better from President Trump."

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Screencap via ABC

Give Barack Obama credit for throwing a real knuckle ball to the GOP Senate by nominating Merrick Garland to the Supreme Court. As Damon Root has noted, Garland is not a wide-eyed, slanted-left progressive by any measure. Indeed, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit voted in favor of expansive Bush adminstration policies during the war on terror.

And, according to prominent legal blogger Tom Goldstein, Garland is "to the right of Scalia on criminal justice." So get ready for Senate Republicans to even talk to, much less confirm a guy who is worse on criminal justice than the man he might replace.

Grits for Breakfast, a Texas-based blog that tracks criminal justice reform issues, helpfully explains why criminal justice reform is always getting shelved in favor of other issues with more immediate partisan appeal:

With this nomination, the president bypassed the chance to show key voting blocks that Democrats care about more than "keep[ing] on catching people and putting them back in jail." Bad SCOTUS decisions are an important part of the reason America's bloated justice system has expanded to such massive proportions, with extraordinary deference routinely given across party lines to government authority at the expense of civil rights and individual liberties. After this nomination, its hard not to see all the president's touring and talking as little more than an election-year campaign ploy.

And yes, I know there are many other issues out there—like abortion and voting rights—driving this nomination. But advocates on those topics throw criminal-justice reformers under the bus all the time without a second thought. That's a big reason why things have gotten so bad: There are reformers on both sides of the aisle, but both parties consider justice reform among their lowest priorities. So, over the years, Grits has reached the point where I prioritize my issues over theirs, because otherwise, who will? Clearly not Barack Obama.

If "right of Scalia" is what a Democratic nominee looks like, maybe we'll get better from President Trump.

More here.

Sadly, of course, if Hillary Clinton becomes president and Scalia's vacancy is still open (and Republicans have pledged not to move on any nomination until after the election), the odds are high that her nominee could be still-farther right than Scalia on criminal justice. Not only was Scalia "a great jurist for criminal defendants" (making him hard to replace on that score), Clinton is a career supporter of over-incarceration and her recent turn against all that is missing any specific remedies for the very policies she once supported.

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  1. I wish we could stop using vague, tribally phrases like “to the right of” that changes in meaning each decade. Just call him what he is: an authoritarian fuckstick.

    1. My first thought was ‘How cute, Nick doesn’t think Progs are authoritarian pricks, bless his li’l heart.’

    2. “authoritarian fuckstick”, yeah sounds exactly like a right winger.

  2. Obama has nominated a statist who loves him some heavy handed criminal justice system as well as being ready to trample the rights of gun owners.

    This is a knuckle ball?

    1. Yeah, that sounds a lot like every other Justice on the Court

  3. What the fuck does “to the right of Scalia” even mean? Scalia did more for the Sixth Amendment than any justice in decades, and toward the end of his tenure, appeared to be resuscitating parts of the Fourth in certain contexts.

  4. we’ll get better from President Trump.

    Did prog-Fonzie suffer a head injury?

    1. This entire election cycle is one big head injury.

  5. “After the election” could also mean, “Oh shit, Hillary [or Trump or Bernie or whatever] just won, let’s confirm this guy during the lame duck session.”

  6. I think it shows rather vividly that identity politics is used solely for achieving politic power and not because the politicians give two shits about the identity groups. Obama is more than willing to put the gains the BLM and some other groups have had on the attitudes of people in society, just so he can tweak the republicans. You can say he isn’t really doing this because he knows he won’t be confirmed, but I am not sure. If trump gets the nomination by or at the convention, I could see him being confirm with senate republicans panicking and fearing worse as they assume a November defeat.

    1. “the gains the BLM and some other groups have had”

      What gains? Any useful work they did with cop-abuse databases is probably outweighed by their “why should we let you go to the store in peace when there’s so much racism you white racist racists!” tactics.

      1. Once again, idiot protestors took a good starting point (ending police abuse, especially for minor offenses and toward minorities) and took it way too far, alienating the average person and polarizing the debate.

        1. Well of course they did. The lefties need to keep people riled up and feeling (instead of thinking), and you can’t do that if you actually FIX anything.

    2. Speaking of using identity politics to gain or keep political power, you wouldn’t be thinking of Obama’s re-election-year “evolution” in his position on gay marriage, would you, Mr. Potatoes?

    3. You’re overthinking it. Those same Black Lives Matters supporters are now yelling at the Senate to “do your job” and confirm this guy.

      It’s all about Team.

  7. It is kind of amusing to see Mitch McConnell dance like an organ-grinder’s monkey at the end of Obama’s leash, though.

    1. These masturbation euphemisms are getting pretty abstract.

      1. That’s not actually funny when referring to a statement involving two people.

        1. Oh, i thought “Mitch McConnell” was a metaphor for… something else.

          1. No jackass, if you’re going to nickname your junk after a congressional leader, there’s really only one option. I suppose “Tip O’Neill” would also be acceptable.

            1. My wife calls mine “Newt Gingrich,” but then we have a special relationship.

              Come on, Hugh, don’t you think “Mitch McConnell” would be an excellent euphemism for smegma?

        2. That’s not actually funny when referring to a statement involving two people.

          FTFY

          1. My thoughts and prayers are with you.

    2. You haven’t gotten tired of that yet? Everything gets old after a while.

  8. Sadly, of course, if Hillary Clinton becomes president and Scalia’s vacancy is still open (and Republicans have pledged not to move on any nomination until after the election)…

    Moot point. One of the Trump side effects will be that the Senate will swing back to the Crips, so Hillary will have clear sailing with whomever she nominates.

    1. Bloods for the Blood God?

      1. Out of her wherever.

    2. Maybe. But I will just point out that the people saying that Trump winning the nomination will cause the Republicans to lose the Senate are the same morons who were saying last summer that Trump would flame out and was no threat to win the nomination. How did that work out?

      I am highly skeptical that Trump winning the nomination will have any effect on the Congressional races. Even if you buy into the idea that Trump is the devil who will lose all 50 states the Hillary, Hillary is so disliked and enthusiasm for her so low it is hard to see how she would have any coattails much less ones large enough to swing the Senate. If anything, voters will be more likely to vote the Senate towards the Republicans as insurance against her winning.

    3. One of the Trump side effects will be that the Senate will swing back to the Crips,

      You know, an article on the pending Senate races, candidates, etc. might be an interesting change of pace.

      1. Yes it would be. But I expect another 12 Trump articles instead.

  9. Here is what a left wing centrist nominee means; totally to the left on free expression and the expansion of the regulatory state but a centrist since they are willing to buy into the worst sort of law and order pro police right wing thinking on criminal justice.

    A centrist from the right is someone who buys into the worst sort of right wing thinking on criminal justice but is centrist because they are deferential to any expansion of government power and the regulatory state.

    Basically, ‘centrist’ is nearly always code for “someone who combines the worst that both sides have to offer”.

    1. And I’m not sure Garland is “totally to the let on free expression” – he applied the Citizens United precedent as a lower court judge but who knows what he’ll do if he’s in a position to overrule it?

      Though I think it’s a moot point because Obama doesn’t expect Garland to be confirmed.

      I saw a New York Times headline at the supermarket which lays out the current line – something like “Obama nominates moderate – Republicans remain obdurate.”

      1. Isn’t he kind of obligated to apply the CU precedent as a lower court judge?

        1. Yes. And Citizens United is the catnip-cryptonite to the proggies. Chris “thrill up my leg” Mathews was opining about what the first thing that needs to be done to fix our election system during Tuesdays primary results. His answer?

          Citizens United needs to be reversed, because Citizens United is responsible for everything we are seeing this year – like Trump winning the Republican nomination. This was on MSNBC with the whole crazy crew – Maddow et. al. General agreement all around. Big corporations making donations to candidates is responsible for Trump.

          Holy crap – dumbest thing ever. Trump is remarkable for how little he has spent. He has dominated the media without any big media buys….. he’s getting all of his coverage for free.

          Even better – Mathews was spewing about how big corporations shouldn’t be allowed to be involved in political speech…… while speaking on MSNBC. That’s Microsoft and NBC-Universal – (a subsidiary of Comcast – 75 billion in revenue last year.) But no irony there. Nope. He and his corporate bosses get to speak their minds and be the arbiters of all things political. Because…. uh…. Corporations!

          What a dipshit.

  10. Obama’s a neocon so he appointed an neocon judge. Why is anyone surprised?

  11. I don’t even know what “right of” means. Does that mean he is less totalitarian and statist? Or more?

  12. Gun grabber. Not acceptable. Everything else doesn’t matter.

  13. Yeah, I don’t support the overall decrease in crime rates over the last 30 years. People who commit crimes and will continue to commit crimes because, well, they are criminals disinterested in an alternative lifestyle, should be released back into our neighborhoods. Our moral obligation is to those who seek to subvert the law; those who are simply trying to be functioning members of society deserve their depredation and, moreover, will depend on the state for protection.

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  15. Of course, the conservative concern isn’t the criminal justice system, but cultural issues such as abortion and homosexual marriage (in both of which liberals seek to punish religious opponents), and gun control. If Garland had any conservative impulses on any of these issues, Big Brother Barry would never have appointed him.

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  18. No surprise here…. the LEFT is all about punishing people that they disagree with.

    Have we forgotten how any Black, Gay, Union Member, Hollywood Type, or any member of any other group they think they control is hounded or targeted by the government (IRS or regulatory agency)

    It is not called the Fascist Left for nothing…

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