Merrick Garland

The Perils of Merrick Garland's Moderation

The Supreme Court nominee's deference to government should disturb progressives as well as conservatives.

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The most worrisome thing about Merrick Garland, President Obama's choice to replace the late Antonin Scalia on the Supreme Court, is that reporters routinely describe him as "moderate." Although that label is supposed to be reassuring, in politics it usually refers to people who combine the worst aspects of the left and right, united by an expansive view of government authority and a narrow view of individual rights.

Garland, a Clinton appointee who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, illustrates that tendency. He is more inclined to side with the government than either conservatives or progressives would like.

Transparency seems to be the one area where Garland has distinguished himself by rejecting the government's position. He has repeatedly done so in Freedom of Information Act cases (although he voted to uphold the government's decision against releasing pictures of Osama bin Laden's body), and in 2005 he dissented from a decision against rehearing a ruling that he said would "routinely succeed in putting reporters who receive whistleblower leaks to the choice of testifying or going to jail."

Otherwise there is not much in Garland's record to gladden the hearts of libertarians. He is statist in most of the ways you would expect a Democratic nominee to be, including hostility to Second Amendment rights.

In a 2003 opinion upholding the federal government's authority to nix a California housing development because it threatened an endangered toad, Garland took a very permissive view of the power to regulate interstate commerce. Regardless of whether the toad had anything to do with interstate commerce, he said, it was enough that the construction project would use "people and materials from outside the state."

More generally, Supreme Court litigator and SCOTUSBlog publisher Tom Goldstein notes, Garland has "strong views favoring deference to agency decisionmakers." The legal blog OnLabor.org reports that Garland has upheld decisions by the National Labor Relations Board in 18 out of 22 cases where he wrote the majority opinion, and "his language in these cases reveals a strong preference for deference."

One important case where Garland joined his colleagues in overturning a regulatory decision involved limits on contributions to independent groups engaged in election-related speech. But that 2010 decision, which gave a green light to "super PACs," was unanimous, dictated by the logic of a Supreme Court ruling earlier that year rejecting limits on political speech by unions and corporations.

Garland is also deferential in an area where civil libertarians might expect a Democratic nominee to be more skeptical of the government's arguments. In a 2010 analysis, Goldstein noted that Garland "rarely votes in favor of criminal defendants' appeals of their convictions."

A look at criminal cases in which Garland has participated since then suggests that pattern has persisted. Goldstein recently told MSNBC it is reasonable to describe Garland as "to the right of Scalia on criminal justice issues."

Garland has not been much more sympathetic to prisoners at Guantanamo Bay, beginning with a 2003 decision, later overturned by the Supreme Court, in which he agreed that they had no right to file habeas corpus petitions. One notable exception: a 2008 opinion in which Garland mocked the government's argument that an allegation against a prisoner who was deemed an enemy combatant must be true because it had been included in three different documents.

Garland's Fourth Amendment record is also mixed. He did vote against reconsidering a 2010 ruling that said tracking a suspected drug dealer's car by attaching a GPS device to it qualifies as a search under the Fourth Amendment (meaning it generally requires a warrant)—a determination that was later backed by a unanimous Supreme Court. But as Goldstein notes, Garland has repeatedly rejected Fourth Amendment claims by other defendants appealing their convictions.

Although the battle over whether the Senate should hold hearings on Garland's nomination pits Democrats against Republicans, both have reason to hope for a better nominee next year.

© Copyright 2016 by Creators Syndicate Inc.

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  1. I’m glad to see liberal replaced by progressive. It’s much more accurate

    1. Well yeah. Although isn’t ” an expansive view of government authority and a narrow view of individual rights” pretty much textbook progressivism?

      Sure, they let you do some things others might not like, but it’s still only a form of permission granted by your betters.

    2. It’s still not accurate, though, because it is not progress. I prefer the term Human Flourishing Denier.

  2. This is the anti2a push Obummer promised.

    Nothing more, nothing less.

  3. He was willing to go on record against the 2nd Amendment. Because he’s in a federal enclave, he didn’t have a chance to go on record in favor of abortion and gay marriage, but so far all Democratic Supreme Court appointees have been reliably prochoice and pro-gay-lib.

    And as the article notes, I’m sure he’ll make up for his non-deferential attitude on “social issues” by allowing Congress and the President to use the Bill of Rights as toilet paper.

    Or as President Bush’s former “chief ethics lawyer” put it, “Judge Garland is just the kind of candidate we would have advised President Bush to nominate if he had been in this situation.”

    And people wonder why voters think politicians of both parties are crooked and ignore the voters who elected them.

  4. Is it just me, or does Merrick Garland just have a face that screams Ayn Rand villain?

    1. Even his name sounds like something that a fiction writer such as Charles Dickens would come up with.

  5. reporters routinely describe him as “moderate.” Although that label is supposed to be reassuring, in politics it usually refers to people who combine the worst aspects of the left and right, united by an expansive view of government authority and a narrow view of individual rights.

    40 yrs. ago, CATO was trying to get libertarians identified as moderates by the same thinking. I think it can still work for some.

    1. People who mix “left” & “right” ideas are described favorably as “refreshing” or “independent”, neutrally as “unorthodox” or “mixed”, unfavorably as “weird” or “schizophrenic”.

  6. Garland took a very permissive view of the power to regulate interstate commerce. Regardless of whether the toad had anything to do with interstate commerce, he said,

    I see what you did there.

  7. Garland is a zero. Nix this ‘moderate’ NOW.

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