President Barack Obama nominated US Circuit Judge Merrick Garland to the Supreme Court Wednesday for a simple reason: Garland has a moderate reputation and strong bipartisan appeal.
But one definition of "moderate" is someone with as many liberal enemies as conservative ones. In Garland's case, the issue that gives him so much cred with conservatives is the very issue that gives liberals pause: criminal justice.
Garland is a former prosecutor with a tough-on-crime record. And the Obama administration, apparently, considers that an asset:
"Merrick Garland would take no chances that someone who murdered innocent Americans might go free on a technicality." —@POTUS#SCOTUSnominee— The White House (@WhiteHouse) March 16, 2016
That's a quote from President Obama's speech nominating and introducing Garland. In the context of the speech, the line actually makes sense — Obama was talking about Garland going the more careful and difficult route on an important prosecution.
But the tweet — and the broader idea that it's a bad thing when murderers "go free on technicalities" — is exactly the sort of rhetoric that drives civil liberties advocates and defense lawyers absolutely nuts.
To most people, the idea is unobjectionable — of course murderers shouldn't go free! But legal "technicalities" exist for a reason.
The US Constitution and its laws say that everyone has certain basic rights in the criminal justice system; that police and prosecutors have to respect those rights; and that those rights are so important that if police and prosecutors don't respect them, it costs them the case.
Prosecutors grumble a lot about "technicalities," because they're law enforcement officials — their job is to protect public safety, and if someone they know to be guilty goes free, they see it as a defeat. But the devotion to the rule of law and the protections of the Constitution above all are qualities that someone might want in a judge — say, a Supreme Court justice.
Garland's tough-on-crime reputation is key to his bipartisan appeal
It's not just that Garland is a former prosecutor. After all, so were Justices Samuel Alito and Sonia Sotomayor — and Sotomayor, at least, has shown a lot more sympathy to criminal defendants since she's been on the Court than you'd expect from her job history. It's that Garland's criminal justice stance is a key reason why conservatives and Republicans like him so much.
In 2010, when Garland was being batted around as a possible nominee to replace John Paul Stevens (Elena Kagan was nominated instead), the New York Times wrote an article making this very point:
Those prosecutorial experiences helped shape his approach to the law. While he is known as a centrist or a moderate liberal in most areas, his rulings suggest that he could be more of a center-right justice in matters of criminal law. His record has helped make him the potential nominee to succeed Justice John Paul Stevens who would stand perhaps the best chance of avoiding a partisan confirmation fight.
Judge Garland "is a profoundly serious guy who really should be the kind of person you want to have on the Supreme Court," said Joseph E. diGenova, a Republican and a United States attorney in the Reagan administration. "If Obama wants to get a fantastic judge on the court, he’s got one ready to go in Merrick Garland."
That's not exactly a character reference that liberals would find reassuring (diGenova has most recently been seen arguing that Hillary Clinton should be thrown in prison over her email scandal).
But more importantly, the idea that Garland's "center-right" criminal justice views are an exception to a generally moderate record — and that that exception builds his credibility with conservatives — is a strange thing to read in an era when everyone from the White House on down appears to agree that the "tough on crime" era is over.
Sure, 2010 was several years ago. But as the tweet from the White House showed, less has changed than you might hope.