Merrick Garland, President Obama's pick for the Supreme Court, has been described as a moderate liberal. But as some have pointed out, he's only moderate on some issues—on others he’s downright conservative. Take, for example, criminal justice issues. It actually looks like Garland may be to the right of Justice Scalia, especially when it comes to the 4th Amendment right to privacy and 6th Amendment rights for criminal defendants.
In 2010, SCOTUSBlog's Tom Goldstein analyzed Garland's record and found that "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions.
Goldstein identified eight cases where Garland decided to vote against defendant's appeal. However, this is what Goldstein called "most striking":
In ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. Because disagreement among panel members on the D.C. Circuit is relatively rare, this substantial body of cases is noteworthy.
Yes, Goldstein also points out that Garland "had joined approximately a dozen published rulings reversing or vacating a defendant's conviction or sentence." But, he says, "In that same period, Judge Tatel joined such decisions (or dissented from the refusal to grant the defendant relief) approximately twenty-five times." Judge Tatel is one of Garland's moderate liberal colleagues on the DC Circuit. Despite his general political leanings, compared to his colleagues Garland has a notably conservative criminal justice record.
As Salon reports, "Garland’s record is particularly troubling when it comes to his deference to police and prosecutors." Garland has often voted to limit defendant rights in search and seizure cases. He has also voted in favor of prosecutors even in cases of prosecutorial misconduct:
In 1999, Garland dissented from a majority opinion ordering a new trial because a prosecutor had misstated critical evidence during the closing argument in a drug case. He wrote that it was “inevitable that trial lawyers will suffer from innocent misrecollections” and that judges should rely “on the self-corrective nature of the adversary system, combined with instructions from the court, to police all but the most egregious of these kinds of errors.”
Surely this was seventeen years ago, but it is still troubling. Nothing about the adversary system has proven to be self-corrective. To ascribe to such a perception so blindly and not regulate and scrutinize the system’s effectiveness is to fail defendants.
Police and prosecutors symbolize the pinnacle of government overreach. When we talk about mass incarceration, we talk about a phenomenon that was born from many state actors trampling on the rights of defendants. It is more than concerning that Garland seems to be comfortable with that.
This conservative criminal justice record is a big deal for a nominee from a president who has called for reform. In a time where true and significant criminal justice reform finally seems like a possibility in America, nominating Garland is not only disappointing but could eventually be lethal to the efforts for change.