• Peter Brostowin

Justice Garland: Redefining “Justice”


Locked in a contentious election year with Republicans and Democrats warring over the majority of topics, many individuals have overlooked the specifics of a battle currently taking place regarding control of the Supreme Court. Not with regards to whether a nominee will be confirmed, but rather aspects of the current nominee – Merrick Garland. The Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, Chief Judge Garland is considered by many to be a ‘moderate’ in decisions that he has presided over. However, as noted by the Washington Post, it can be an unreliable position to predict future votes of lower-court judges through using a panel of three judges. While many are calling for confirmation hearings, there are some liberals that are dismayed at the choice given Chief Judge Garland does not appear one destined, or intending, to “take on” the Supreme Court conservatives. Regarding the future of jurisprudence pertaining to criminal law and procedure, the concerns may be justified.

Chief Judge Garland became a federal prosecutor with the U.S. Attorney’s Office for the District of Columbia in 1989, assisting with public corruption, drug trafficking, and fraud. From there, he joined the U.S. Department of Justice, and at one point served as Principal Associate Deputy Attorney General. He gained renown for his work supervising the Oklahoma City bombing case. As noted by SCOTUSblog, Garland ensured his work was accomplished in a painstakingly thorough manner, as he “would take no chances that someone who murdered innocent Americans might go free on a technicality.” While his work in the public sector raises no particular concerns for advocates of criminal justice reform, with his work able to be classified as ‘typical’, the experiences could provide insight as to the many criminal proceedings he oversaw during his time as a (Chief) Judge. Garland described the Oklahoma City case as “the most important thing I have ever done in my life.

Turning to Garland’s time as Judge and Chief Judge, Tom Goldstein of SCOTUSblog, amongst others, has pointed to the fact that Garland has rarely voted in favor of a criminal defendant’s appeal. In United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998), Garland dissented on the notion that prejudicial effect of improper cross was not significant enough and that there was sufficient evidence to convict. Shortly thereafter, Garland dissented once again in a drug case (United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999)) declaring the “innocent mistakes” of a prosecutor’s recollection “inevitable and hardly uncommon.” There, problem arose when the prosecutor asked a witness a compound question resulting in an ambiguous answer, which the prosecutor later summarized as unambiguous. Garland, in dissent, declared that the jury’s role becomes remembering what witnesses actually stated. Despite noting that the evidence against the defendant was not “overwhelming,” Garland believed in upholding the conviction despite the potential prejudice in the misrepresentation to the jury. As noted by the NY Times, the two above-mentioned cases marked the beginnings of a pattern in Garland’s criminal jurisprudence. In fourteen instances identified by the NY Times, where Garland voted against his fellow judges, ten were in favor of law enforcement, and there was no occasion in which Garland favored a criminal defendant when a fellow judge sided with the government. SCOTUSblog’s Tom Goldstein came to a similar conclusion, citing only eight published rulings in which Garland ruled in favor of a criminal defendant’s conviction appeal.

Stephen A. Saltzberg, former federal prosecutor, told the NY Times that Garland “genuinely understands some of the pressures on prosecutors and police that perhaps non-law-enforcement judges may discount,” noting that this may help to explain the idea Garland “may find something to be reasonable” where an individual with less experience wouldn’t. As noted at the outset, the decisions cited by the NY Times and SCOTUSblog are not necessarily indicators of broad rulings Supreme Court justices are likely to impose. That being stated, Justice Garland could reasonably be considered a friend of capable/competent prosecutor’s and law enforcement. Garland’s experiences working closely with victims and the fear of technicalities causing miscarriages of justice could ultimately redefine concepts of justice in the future. As one of nine, Justice Garland’s ability to expand Fourth Amendment jurisprudence regarding ‘reasonableness’ of searches could lend prosecutors a helping hand. Whether Chief Judge Garland will become Justice Garland remains unclear, while his criminal law leanings and notion of ‘justice’ appear to be the driving force behind the ‘moderate’ classification to the masses.


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