Someone on Facebook was attacking Merrick Garland this morning. I hadn't been paying attention. I'd basically assumed that anyone that President Obama nominated would be a decent choice for the SCOTUS and dead in the water to the Right Wing. But this was an attack from the left and the person was claiming that he'd be a vote against overturning Citizens United. So I started checking; "who he is, how did he get there, and what decisions has he made up til now?". To get there I had to do some digging. What I find is a man who is fairly liberal on most issues, pro the environment, against corruption and monopoly; but conservative on policing and some civil liberties issues. I'm borrowing this image from Milt Priggee:
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| More Cartoons by Milt Priggee |
Starting at the folks attacking him from the right. I find the way to get unvarnished negatives is to go to my enemies first.
"Disdain for the Truth?"
The Right wing opposition researchers already have a long list of grudges against Mr. Garland. Indeed they title their bash of him as a bash on the integrity of the entire "left." National Review's Dennis Prager (who is a serial basher) titles his article; "Judge Garland and the Left’s Disdain for Truth" -- which I take personally since I not only don't disdain truth, I truly disdain the lying sons of guns who tell me I do so. Typically they are projecting, but it is still irritating. But anyway. Prager makes his bashing of Garland as a general bash of the entire "left":
"Everything the Left believes in is more important than truth — social justice, economic equality, reducing carbon emissions, expanding the power of the state, battling sexism, homophobia, Islamophobia, racism, and above all of these, destroying its conservative opposition." [http://www.nationalreview.com/article/433067/merrick-garland-liberal-media-lies-about-his-record]
Prager's of half truths is right that we care about social justice, economic equity (equality is impossible and unnecessary), avoiding flooding Floriday and battling sexism, homophobia and racism. But we don't want to destroy our "conservative opposition" -- just tame it. The conservative opposition has no trouble with expanding State police powers, turning our police into standing occupying armies, and trying to destroy us. If Prager were interested in intelligent argument he wouldn't strawman our concerns. But anyone familiar with this man knows he's not. But anyway back to Garland. Prager considers Garland a "leftist" because he'd stand with the rest of us on:
“abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.” [Prager Article]
My Friend was afraid that he'd stand on the right of us on campaign spending. Prager is on the Fascist Far Right so it' not surprising that when Garland is called a centrist by the media, he would call the media a bunch of liars. What are the facts?
Well Prager complains that:
“In 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB [National Labor Relations Board].”
And that is a bad thing? Prager also thinks it bad that he's supported EPA decisions on the environment:
“Scotusblog’s Tom Goldstein points out that Mr. Garland has strong views on agency deference” and “in a dozen close cases in which the court divided, he sided with the [EPA] every time.” [Prager Article]
Indeed he has a reputation as a judge for supporting the EPA when challenged by polluters. From a Civil Libertarian Point of View there are issues with supporting a conservative view of authority too. But from the Point of View of Fascists like Prager supporting the EPA is the problem and if he confined his "agency deference" to detainees and the accused Prager would be all for him. Wikipedia on him notes:
"In Motor Vehicles Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. (1983) Garland acted as counsel to an insurance company suing to reinstate an unpopular automatic seat belt mandate. After winning the case in both the D.C. Circuit and the Supreme Court, Garland would write an eighty-seven page Harvard Law Review article urging courts to use a heightened hard look standard of review whenever an agency chooses deregulation. In 1985-86, while at Arnold & Porter, Garland was a lecturer in law at Harvard Law School, where he taught antitrust law. He has also published an article on antitrust law in the Yale Law Journal." [Wikipedia: Garland]
Garland also worked at the Justice department where he specialized in drug trafficking cases and corruption. Sounds like my kind of guy. But then when Dennis hates someone and rails against "totalitarianism" if he's nominated -- that is usually a good person. If he liked him I'd be worried.
Habeas Corpus?
The reason the person I was discussing with this morning doesn't wash out. But I think I found his real concern. Think Progress also has an article on Garland. That talks about his decision on the rights of a Guantanamo detainee lawsuit:
"Garland joined an opinion holding that the federal judiciary lacks the authority “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States" -- an opinion that effectively prohibited Guantanamo Bay detainees from seeking relief in civilian courts. A little over a year later, the Supreme Court reversed this decision in Rasul v. Bush. Although, in fairness, it should be noted that legal experts disagree about whether the decision Garland joined was mandated by existing precedents." [Think Progress]
That is a disturbing decision. It would be a more disturbing decision if Garland had actually in fact been on the record as "joining the majority." Garland is conservative on law enforcement and personal liberty issues -- and that is probably my friends real concern. But he was on a panel of judges that doesn't publish dissents, and he was not the author of the opinion and we have no record of any dissent for them to base their criticism of. So this could be just as easily an unfair interpretation of his vote. It can also be that Garland went along with a compelling argument. Justices tend to evolve (or de-evolve) on issues depending on the arguments merits they are presented with. They have to go with the facts and the case law. I would be happy with him on the bench. But at least now I understand the pluses and minuses and why folks would see him as "the enemy." Just not me.
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