If Joe Biden Is Serious About Criminal Justice Reform, He Won't Pick Merrick Garland for Attorney General

Garland’s judicial record is replete with deferential votes for police and prosecutors.

President-elect Joe Biden is reportedly considering federal Judge Merrick Garland to serve as the attorney general in his administration. According to reporting by NPR, "two people closely following the process" say that Garland is a contender for the role in the Biden White House.

Garland, a long-serving judge on the U.S. Court of Appeals for the District of Columbia Circuit, was President Barack Obama's 2016 pick to replace the late Justice Antonin Scalia on the U.S. Supreme Court. But Garland's SCOTUS nomination was totally stonewalled by the Republican-controlled Senate, which refused to even hold hearings. As a result, President Donald Trump was later able to fill the vacancy by nominating Neil Gorsuch.

Plenty of Democrats would no doubt enjoy the idea of Biden trolling the GOP by sending Garland back to Capitol Hill for another high-profile Senate confirmation showdown.

But the idea of Garland serving as attorney general is also likely to trouble many criminal justice reform advocates. That is because Garland has the sort of judicial record that police and prosecutors are quite happy to see. As I noted in a 2016 column:

While Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.

In the area of criminal law, for example, Garland's votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions."

On the presidential campaign trail, Biden made certain efforts to distance himself from his regrettable record as an inveterate drug warrior and law enforcement booster. If Biden would like to demonstrate his seriousness about turning over a new leaf on criminal justice issues, picking Merrick Garland for the top law enforcement position in his administration might not be the best way to do it.