The Joe Biden administration has just delivered its first disappointment to criminal justice reform advocates. It probably won’t be the last.
“According to people familiar with the decision,” reports The Washington Post, the incoming president has picked Merrick Garland “to become the next attorney general.” Garland is the rare federal appellate judge who is practically a household name. In 2016, President Barack Obama tapped Garland, a long-serving judge on the U.S. Court of Appeals for the District of Columbia Circuit, to replace the late Justice Antonin Scalia on the U.S. Supreme Court. But the Garland pick was effectively filibustered by the Republican-controlled Senate, which refused to even hold hearings on the nominee. President Donald Trump later appointed Neil Gorsuch to fill the Scalia vacancy.
Many rank-and-file Democrats are sure to enjoy the sight of Garland being readily confirmed by what now looks to be a Democratically-run Senate thanks to the results from yesterday’s special elections in Georgia. Garland may even enjoy a satisfied smirk or two himself.
But as I’ve previously noted, “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.” A former federal prosecutor himself, Garland has seemed all-too-content to give law enforcement officials the benefit of the doubt in many cases.
New York Times reporter Charlie Savage reached a similar conclusion after conducting his own review of Garland’s judicial record. “In close cases involving criminal law,” Savage reported, Garland “has been far more likely to side with the police and prosecutors over people accused of crimes.”
Garland’s elevation to the position of attorney general does contain one potentially huge silver lining for the criminal justice reform crowd. With Garland gone from the D.C. Circuit, Biden will have the opportunity to name a new jurist to what is often called the second most powerful court in the nation. That’s a great opportunity for Biden to replace Garland with a lawyer whose past experience includes battling the government in court, such as a current or former criminal defense attorney, public defender, or public interest litigator.
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