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.
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.