So, President Obama announced his nominee for the Supreme Court this morning. As many have noted, it’s likely that a lot of the decision as to who was nominated was political, to shame the Republicans who refuse to even hold hearings on the nomination by nominating someone that they shouldn’t have a problem with, and then use their refusal against them in the November elections.
It’s possible, then to consider that there’s no real intention that this candidate is actually a possibility for the court. But still, I feel it’s important to look at them as if they would be. Here’s my quick reaction that I posted on Facebook:
Well, I’m disappointed with the nomination of Merrick Garland. Not really surprised that this would be the general direction the President would go, but disappointed. Garland is brilliant and certainly qualified. He is a moderate centrist with the potential for helping sway the more conservative members of the bench away from the extremes. And he’s generally left of Scalia. He has a pretty broad view of the First Amendment, which I like, but my biggest concern is in criminal justice issues.
Judge Garland spent much of his career working for the government — in the Justice Department and for prosecutors. I would really like to see someone on the Court who has more experience working for the people – someone who knows what it’s like to be a defense attorney, for example. And this has been demonstrated in his decisions on the bench where he has consistently gone against his liberal colleagues in providing deference to the government in criminal justice cases.
Garland has also regularly showed extreme deference to government agencies. According to ScotusBlog, “In a dozen close cases in which the court divided, he sided with the agency every time.” This, again, is a concern to me as I view part of the critical function of the Supreme Court to be one of the checks and balances of government, not an extension of the Executive Branch. But, of course, I’m not surprised, as President Obama has consistently pushed hard against any judicial oversight of the decisions of the Executive.
Merrick Garland will be a good jurist if he is confirmed. But at a time in our nation when we are desperately in need of critical criminal justice reform, it’s unlikely that his addition to the court will in any way help us move in that direction. And with a completely dysfunctional Congress and a reticent (and sometime hostile) Executive Branch, that would leave it entirely to the people to continue the hard slogging away at grass-roots reform.
As a side note, the President made a pretty serious gaffe for a constitutional lawyer when he said,
“Merrick Garland would take no chances that someone who murdered innocent Americans might go free on a technicality.” â€”@POTUS #SCOTUSnominee
Again, some speculate that this was merely tossing red meat to the law-and-order crowd, but it’s a pretty insensitive comment to make when criminal justice reform is such an important topic.