Merrick Garland

Merrick Garland, Extremist

Garland looks like a moderate because he tends to side with the government irrespective of who's in charge.

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The way things look now, Merrick Garland's nomination to the Supreme Court is never going to get a hearing in the Senate. It's probably just as well.

True, Republicans owe Garland—and the country—the courtesy of consideration rather than summary rejection. By all lights, he is a decent human being and a brilliant legal mind. But that does not make him an optimal choice for the high court, despite his reputation as a moderate.

No—make that because of  his reputation as a moderate.

Everybody and his sister has been pinning the word "moderate" on Garland. Some of that is just spin. President Obama's first Supreme Court pick, Sonia Sotomayor, was called a "moderate," too—or, at most, a "moderate liberal." Same story with Elena Kagan. Those two Justices have since become the court's left-wing anchors. It's standard operating procedure for the establishment media to paint Democratic nominees as more centrist, and Republican nominees as less centrist, than they really are.

Garland's reputation as a moderate is more deserved—at least in one sense. He is not a doctrinaire liberal, nor is he a rhetorical bomb-thrower, and he shies away from deciding cases on sweeping grounds when more narrow ones will do. In the past he has enjoyed considerable support from Republicans, including Senate Judiciary Committee veteran Orrin Hatch (Utah), who once proffered Garland as a possible Supreme Court nominee. Richard Painter, a former chief ethics counsel for the George W. Bush White House, recently went so far as to write that Garland, "a proven moderate," is "exactly the type of person who might have been chosen by the Bush administration." Apparently he meant that as a compliment.

Garland's reputation for moderation rests partly on his experience as a former federal prosecutor who, as Painter notes, "has aggressively and thoroughly prosecuted terrorists"—including the Unabomber and Timothy McVeigh. And perhaps because of that background, Garland is exceedingly friendly to law enforcement.

A New York Times analysis examined 14 criminal cases in which Garland voted differently from other judges. In 10 of them, Garland sided with the government—a record that "has contributed to his image as a moderate," the paper notes. 

But then, when has Garland not sided with the government?

He supported the government's position in a case arising out of Guantanamo Bay, arguing that federal courts had no habeas corpus jurisdiction over detainees held there. The Supreme Court later ruled 6-3 that they do.

Garland also takes the government's side—reflexively—in cases regarding the authority of executive agencies. This might seem like an obscure area of jurisprudence, and it certainly does not set the streets on fire like cases involving gun control or abortion rights do. But it affects a vast number of Americans nonetheless. Federal agencies issue far more rules than Congress issues laws, and each year 10 times more people are tried in administrative proceedings by federal executive agencies than are tried in federal courts.

Six years ago Tom Goldstein reviewed Garland's record on Scotusblog and found that "Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the (D.C. appellate) court divided, he sided with the agency every time."

Goldstein also noted, with regard to civil rights, that "Garland has in a few cases rejected assertions of constitutional rights, disagreeing with his more-liberal colleagues. I am not aware of counterexamples in which he has staked out a more liberal position."

And speaking of civil liberties, Garland seems ill-disposed toward one that has an entire constitutional amendment all to itself: gun rights. When the D.C. court struck down Washington's ban on handguns, Garland wanted to rehear the case. By itself, that might not amount to much. But Garland also supported a Clinton-era practice of retaining the records from instant gun background checks, in defiance of the 1994 law that created them. Whether that counts as deference to an executive agency or hostility to gun rights, or both, the result is the same.

Indeed, a prominent blog covering intellectual property law reviewed Garland's record and concluded: "Time and again, it would appear that Garland isn't interested in pursuing political ideology so much as he is interested in siding with the views of the government presented in the case."

To be fair, Garland doesn't side with the government 100 percent of the time. As Reason's Jacob Sullum notes, he defers to the government least in freedom-of-information cases. But that's the rare exception—and that's the problem.

Sometimes Garland sides with conservatives, and sometimes he sides with liberals. So on a liberal-vs.-conservative axis, he looks like a moderate. But the ideological wing he joins depends on which wing has taken the government's side. That's where he ends up. So on a government-vs.-liberty axis, he does not sit in the center— but on the extreme edge.

By contrast, liberals will side against the government in some cases, and conservatives will side against it in others. Either one would be preferable to a justice who thinks the government can do no wrong.

This column originally appeared in the Richmond Times-Dispatch.

NEXT: SCOTUS Delivers Big Win for Criminal Defendant in 6th Amendment Case, Rejects Pre-Trial Freezing of Non-Tainted Assets

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  1. And what we DEFINITELY need in this country is MORE judges who side with the gummint reliably.

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  2. So on a government-vs.-liberty axis, he does not sit in the center? but on the extreme edge.

    Just say it. The guy is a totalitarian.

    1. When I see his face, I just think Ellsworth Toohey.

  3. He is was a hack Oklahoma city prosecutor that built such a shitty case against McVeigh he almost got a not guilty. Although many think it is because he as a prosecutor didn’t want to show that others were involved because the government had agents and informants that had foreknowledge. so that would make him a hack that covers up truth for the state.

  4. It should not be which side won or lost by his decisions to judge the quality of his philosophy but why which side won or lost.

    1. Which side won or lost is decided by a majority of the judges, so whether Garland was with or against the majority you look at his individual position to see what his philosophy is.

      The answer to why he voted the way he did is the whole point of the article:
      Rule 1; “The government is always right.”
      Rule 2; “If the government is wrong, see Rule 1.”
      Rule 3; “If the Bill of Rights says government can’t violate civil rights, see Rule 1.”

    2. This is an attempt to identify any biases in his decisions.

  5. By the media’s definition, a true moderate will back Congress against the claims of the individual, and/or of the states.

    A true moderate will also back the executive and the administrative agencies against claims that they’re intruding on Congressional prerogatives.

    On the other hand, a true moderate will also uphold Supreme Court precedents, even if those precedents go against the putative Will of the People. This is important because of Roe v. Wade and the gay-marriage decision. A judge willing to follow those decisions will be forgiven much.

    Ideally, from the media’s point of view, a moderate will make partisan exceptions to all of the above principles – eg, deferring to the executive isn’t all that important under a Republican administration, and deferring to Congress isn’t so important under a Republican Congress.

    But apparently Judge Garland isn’t *quite* that crass. He will probably apply all three principles consistently – or would, if those principles were capable of being applied consistently. But at least he’ll struggle to apply those principles non-partisan-ly.

    But that’s OK, because Congressional supremacy, the administrative state, and upholding the Court’s liberal precedents are such priorities to the media that they’ll be willing to forgive a judge for, say, siding with the Bush administration in a national-security case.

  6. And to be clear, I don’t think Obama expects Garland to be confirmed. He expects the Republican Senate to reject whoever he nominates.

    If he thought a nominee of his would have a chance, he’d send up another Sotomayor or Kagan.

    But if he’s going to be defeated, then the designated sacrificial lamb will be a “moderate” – as in “extremist Republicans reject moderate nominee.”

    So if he can’t get another justice, at least he can get a good Democratic talking point.

    1. Four-dimensional chess, bitches!

    2. And that is the whole point [of the nomination]. Given that Republican leadership laid down the gauntlet even before anyone was nominated, he is just making the most of the opportunity offered to him.

    3. That way whoever wins the election he can claim if they’d let him, he would have selected a moderate. If Hillary wins it’s a hit for the Republicans, who rejected his “moderate” candidate. If the Republicans win he can point out how evil they are for not wanting a moderate candidate, and say they’re politicizing the court.

    4. That way whoever wins the election he can claim if they’d let him, he would have selected a moderate. If Hillary wins it’s a hit for the Republicans, who rejected his “moderate” candidate. If the Republicans win he can point out how evil they are for not wanting a moderate candidate, and say they’re politicizing the court.

  7. A Harvard-educated former federal prosecutor; what could possibly be more mainstream-middle-of-the-road than that?

    1. I think irrespective of political affiliation, the fact that Harvard and Yale are so disproportionately represented is a cause for concern about both the upper echelon of the judiciary and POTUS candidates.

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  9. Garland sided with the DEA when they refused to reclassify marijuana.
    Garland believes that only the DEA knows what’s best for you – a mere serf.

  10. Networks Rush to Deem Garland a ‘Moderate,’ ABC, NBC Avoid Liberal Label

    http://www.newsbusters.org/blo…..eral-label

  11. Gun stance disqualifies Merrick Garland for Supreme Court

    http://triblive.com/opinion/fe…..rt-supreme

    1. Exactly right. I wonder what other amendments Garland is wiling to dissolve besides the 2nd?

    2. I would respect the left if they attempted to remove the 2A by proper means as opposed to judicial activism. I understand there is a decently sized percentage of people that don’t think anyone but the government should have guns. Let’s see if there are enough to amend the constitution.

      1. They do it because they know it will never happen under “normal” circumstances. The second amendment will never be repealed, period. Guns are only getting more popular, particularly amongst the left.

        Even if there was somehow enough of a majority that they successfully appealed the second amendment the result would be bad. Very bad. If you think we had it hard with insurgents and what not in Iraq, try to imagine what would happen here if it got to that point.

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  15. I don’t think Garland is any sort of sacrificial lamb, or simply a Democrat political “talking point.” I think he represents Obama’s sincere attempt to be one making the choice. Let’s keep in mind Obama’s ego is not small– otherwise, for example, he wouldn’t have crashed Queen Hillary’s coronation tour eight years ago– and at this point all he’s trying to do is cement his legacy.

    1. and at this point all he’s trying to do is cement his legacy.

      Obama has always been about appearances and legacy, from the start. He just messed up the big stuff so badly that he’s now hoping that a trip to Cuba and a “moderate” supreme court justice may still do the trick.

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  17. Mr Hinkle,
    Actually, the constitution does NOT require the courtesy of consideration.
    Nothing is “owed”.
    Get over it.

    1. The right of consent is also the right *not* to consent. They’re not consenting.

  18. “Judge Garland has strong views favoring deference to agency decisionmakers …”

    That is the number one reason Obama picked him; he needs the Supreme Court to keep greenlighting the new anti-constitutional bureaucracies he initiated during his reign, with their open-ended mandates, staffed and controlled by his people and networks.

    Dismantling Obama’s structures should be the top priority for Republicans, but most don’t even understand what is going on – Trump certainly doesn’t.

    1. That’s one of the *very* few reasons i tepidly like Cruz. Despite all the religious right garbage, i know he would maintain support of the constitution.

  19. Can someone tell me which one is sugarfree?

  20. True, Republicans owe Garland?and the country?the courtesy of consideration rather than summary rejection.

    No they don’t. The Senate has the power to consent, or not. Well, they’re not consenting. The Senate holds up appointments all the time, without hearings or votes. Get over it.

  21. Sorry, but to me “moderate” is a dirty word. It reminds me of wishy washy

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