Joe Biden has decided to nominate Merrick Garland for Attorney General. Biden’s media allies are portraying Judge Garland as a moderate and his nomination as evidence of the president-elect’s moderation.
Don’t buy it. Biden’s move is a clever attempt to appear moderate while radicalizing both the Justice Department and the D.C. Court of Appeals on which Garland presently serves.
First, don’t accept the view that Garland is a moderate. His portrayal as such stems from Barack Obama’s attempt to smuggle Garland on to the Supreme Court at a time when Republicans had the power to block any Obama nominee.
I have never seen good evidence that Garland is other than a consistent liberal. In 2016, the New York Times found that, on the ideological spectrum, Garland fell just to the left of Elana Kagan and just to the right of Ruth Bader Ginsburg.
The Washington Post countered with a chart that placed Garland at about the midway point between Ginsburg and John Roberts among D.C. Circuit judges. But the Post’s analysis was garbage. Roberts had participated in too few cases for the analysis of him to be meaningful. And the Post’s chart somehow placed Antonin Scalia in the moderate category.
Scalia was no moderate. Neither is Garland.
Claims that Garland is moderate are based on his willingness to defer to federal agencies. But deference to the administrative state is not a moderate approach. It’s a central tenet of the left and has been for a century.
Garland’s deference to the state has carried over into some of his decisions on criminal law. These decisions have pleased law-and-order conservatives.
However, these deference-to-the-state decisions aren’t evidence that Garland will favor a law-and-order approach when he becomes a key part of “the state.” There is no reason to believe he will. In the current climate, Garland’s liberalism will likely cause him to go with the pro-BLM, anti-law-and-order flow, just as Biden’s liberalism has.
Second, to understand what to expect from the Biden DOJ, we need to look at those who will staff the key positions under Garland. Biden will nominate Lisa Monaco to be Garland’s deputy and Vanita Gupta for associate attorney general, the number three job. In addition, he will nominate Kristen Clarke to head the civil rights division.
This news delighted Al Sharpton. He said:
I am. . .excited about the nomination of Vanita Gupta as Associate Attorney General and Kristen Clarke to head up the Civil Rights Division. The potential of them in the Justice Department gives me some cause to feel that this Justice Department will at least be a radical change from the four years of anti-civil rights, anti-voting-rights and anti-police reform of the outgoing administration.
Sharpton should be excited. Gupta is a core hard lefty. She led the civil rights division during a portion of the Obama years, strongly backing racial preferences across a broad spectrum and enabling criminals by impeding local policing.
Clarke is president of the National Lawyers’ Committee on Civil Rights, a hard left outfit. Her background at the DOJ consisted of prosecuting alleged police brutality and “hate crimes.” Expect her to focus on undermining the police this time around.
Monaco has a strong national security background. It will be welcome. However, it’s unlikely that she will offset or override the leftism of Gupta and Clarke in areas like civil rights where she lacks background.
Thus, Biden’s DOJ will be led by a liberal and its direction on key matters will be driven by radical leftists.
Third, this is only part of Biden’s play. Garland’s confirmation will create a vacancy on the D.C. Circuit. This will pave the way for Biden to nominate a young, ideologically committed leftist — someone more radical than the liberal Garland — to the second most important court in the land (Garland is 68).
One name that keeps popping up is Judge Ketanji Brown Jackson, age 50, of the U.S. District Court for the District of Columbia. Her leftism is evident from the fact that she’s being pushed for elevation by Demand Justice, a leftist dark money operation committed, among other projects, to packing the Supreme Court.
Judge Jackson is a former public defender and member of the U.S. Sentencing Commission where she helped lead the charge for lenient treatment of federal felons. As far as I can tell, her rulings toe the pro-Democrat, left-liberal line.
Elections have consequence. Biden’s DOJ-D.C. Circuit play is a foreseeable consequence of the latest elections. There’s nothing abnormal about what Biden is doing here. But there isn’t anything moderate about it, either.