Merrick Garland has done nothing to show himself to be the moderator of partisanship some hoped he might be.
U.S. Attorney General Merrick Garland (R) and FBI Director Christopher Wray hold a press conference at the Robert F. Kennedy Main Justice Building on November 08, 2021 in Washington, D.C. (Photo by Chip Somodevilla/Getty Images)
When Merrick Garland was appointed attorney general, there was a widespread belief that as a person acclaimed as a “moderate,” he would be a restraining influence on the more exuberant progressives in the Biden administration. This was an unrealistic expectation.
Garland’s reputation for moderation arose from his gentlemanly and modest demeanor, exhibited during the abortive effort to confirm him to the Supreme Court, and from his willingness to uphold some of the more noted excesses of the Second Bush administration during the so-called War on Terror that Bush regarded as his political meal ticket. Garland, as the federal prosecutor of the Oklahoma City bombing, had understandably strong emotions about terrorism.
The president’s appointments to the civil rights agencies within and outside the Justice Department, however, reflect no restraining influence on Garland’s part, including as they do Pamela Karlan, a sponsor of abortion cases and critic of Milliken v. Bradley and San Antonio v. Rodriguez; Vanita Gupta, a leading advocate of police consent decrees, including the disastrous one in Baltimore; Catherine Lhamon, author of the notorious “dear colleague” letter urging that students accused of sexual harassment be stripped of rights of cross examination and their accusers be made to carry only lenient burdens of proof; and Suzanne Goldberg, also a critic of the revised campus assault rules adopted by the DeVos Education Department and upheld by the courts.
Garland has gone on to authorize attacks on Texas and Georgia election laws. One of the laws attacked limits assistance to disabled voters in polling booths and the attack effectively is designed to support orchestrated early voting by senile and frequently incompetent voters bussed in from nursing homes; another imposes neutral formalities on mail ballots, a safeguard against vote-buying. Limitations on the provision of water and food to voters standing in line are assailed; although a different view might be taken if this controversy had been precipitated by Republicans providing elaborate box lunches to suburban voters. Limits on drop boxes are attacked, although the reason for them is that the use of drop boxes vitiates efforts to prevent “ballot harvesting” by requiring absentee ballots to be delivered one at a time by relatives of the voter. It is alleged that these limitations have a disparate impact on minority voters. That can also be said of the use of the secret ballot itself, designed to disrupt the pressures once brought by nativist and other political machines when votes were cast in the open. Certainly these lawsuits are not without partisan taint.
Garland has authorized the Justice Department’s gratuitous intervention in the Texas abortion case. Ignoring standing and “case and controversy” limitations, the Justice Department asserted what amounted to a claim for Supreme Court veto of state legislation, proposals for which were three times rejected at the Constitutional Convention. The new solicitor general’s argument against the law relied on three cases long viewed as the most extravagant reaches of federal judicial authority: Debs, about which Attorney General Edward Levi was a notable sceptic; Cooper v. Aaron, whose supremacist rhetoric in the cause of civil rights evoked an anguished concurrence from Justice Frankfurter; and Shelley v. Kraemer, whose assault on private covenants as “indiscriminate impositions of inequality” was admitted to be incoherent by Francis Allen, Chief Justice Vinson’s law clerk and the probable author of the opinion. Even in the heyday of the 1960s civil rights movement, its leading lawyers, including Burke Marshall and John Doar, were careful to rest regulations of private behavior on the Commerce Clause, not the 14th Amendment.
The Justice Department’s intervention in litigation over school masking, school board deliberations, and Covid-19 testing is likewise hard to justify. The Trump administration was not presided over by a philosopher king, but Trump had the good sense to leave both the imposition of lockdowns and the re-opening of businesses entirely to state and local governments, equipped to assess local risks and conditions. This produced disease rates somewhat less than those of most foreign countries, and less damage to the economy. It also prevented Covid responses from becoming a starkly partisan issue right away. The new efforts to impose national rules are doing just that, and are almost certainly counterproductive as a means of raising vaccination rates. As the experience of the fugitive slave clauses, alcohol prohibition, and the drug war attests, Americans tend to resist sumptuary legislation overriding state and local preferences.
Recent Democratic administrations tend to assume that any cause clad in the mantle of civil rights is the appropriate subject of federal judicial, legislative, or executive action. There is a tendency to forget that the heroic judicial measures on behalf of black Americans in the 1960s appealed for their justification to Chief Justice Stone’s opinion in the Carolene Products case, with its reference to “prejudice against discrete and insular minorities… curtail[ing] the operation of those political processes ordinarily to be relied upon to protect minorities.” This scarcely describes a condition in which the black vote dominates Democratic primaries in most Southern and Border states and in many large cities.
The Justice Department’s recent culture war adventures could not be better calculated to generate and perpetuate the mistrust and division successfully exploited by former President Trump. Some words of a successful constitution-maker about the separation of powers should be heeded. Charles De Gaulle, the founder of the Fifth French Republic, with its successful constitution, wrote in the last volume of his memoirs, published in 1962 “before the flood”:
America… has only two parties, which are opposed on none of the fundamental issues—nationhood, moral law, institutions, defense, freedom, ownership. It is a federation of states each of which, with its governor, its representatives, its judges, and its officials—all elected—takes upon itself responsibility for a large part of the immediate business of politics, administration, justice, public order, economy, health, education, etc. while the central government and Congress normally confine themselves to larger matters: foreign policy, civic rights and duties,, defense, currency, overall taxes and tariffs. For these reasons, the system has succeeded in functioning up to now in the north of the New World. But where would it leave France, … a country the demands of whose unity coupled with the perpetual threats from outside have induced to centralize its administration to the utmost, thus making it ipso facto the target of every grievance?… The inevitable result would be either the submission of the President to the demands of the deputies or else a pronunciamento.
To these cautionary words should be added the warnings of Justice Jackson, in his last book, his oral history, and elsewhere, of the dangers of expanded federal criminal jurisdiction to the American system of government.
The United States has had three notable modern attorneys general: George Wickersham, Robert Jackson, and Edward Levi. Enough has been seen to determine Merrick Garland will not take a place among them.
George Liebmann is president of the Library Company of the Baltimore Bar and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005), one of them Edward Levi.