As Americans who follow politics know, Merrick Garland, our current United States Attorney General, was nominated by Barack Obama to fill the Supreme Court seat vacated when the right-wing ideologue Antonin Scalia died. We also know that although there was still a year left in Obama’s presidency, Senate Majority Leader Mitch McConnell, also a right-wing ideologue, refused to hold confirmation hearings on Garland’s nomination.
McConnell attempted to justify his transparently-partisan dereliction of duty on the specious grounds that, since Obama was a lame-duck, a nomination to fill the vacated seat should wait until after the upcoming election to better represent the will of the voters. By that logic, the winner of the popular vote should have selected the nominee. That would have been Hillary Clinton.
Faced with McConnell’s betrayal of the Constitution, Obama did virtually nothing. He could have, and should have, gone to the people, and to the mat, to fight for his nominee; he could have, and should have, taken to the air waves and the internet; he could have, and should have, protested loud and long, insisting every day in every way that McConnell had suspended the Constitution for partisan gain and that he take up the nomination. He could have, and should have, tried harder.
Had he actively promoted his nominee, actively crusaded for a hearing—he had the Constitution to use as a cudgel—there was at least a chance that stirring public outrage might have mobilized people, might have pressured McConnell into holding a Garland-confirmation hearing. Had that happened, Garland, against whom there was little to say—no one has yet come forward to accuse him of raping an unconscious coed—would have been seated, and Roe v. Wade would still be the law of the land. Whether actively protesting McConnell’s actions could have actually made a difference can’t be known. What is known is that Obama failed to try. He complained a bit, then moved on, leaving Garland, and our country’s future, twisting in the wind.
Obama’s failure to use his bully pulpit to protest, to try to get his nominee confirmed, is an indelible stain on not only his record, leadership, and presidency, but also on our country. It is a failure we will for decades live with and suffer from, perhaps fatally for our country, unquestionably fatally for many women.
Joe Biden appointed Garland his Attorney General, perhaps in part to keep Garland in the public eye should a Supreme Court seat open on his watch. And perhaps, as shabbily as Garland was treated by McConnell, the AG appointment was intended as a consolation prize. If so, a consolation prize for Garland has turned out to be no favor to an American public that voted for Biden at least in part in the hope that some of the democratic guardrails his predecessor had torn away could be restored; and also, at least in part, in the hope that Biden’s predecessor would in some measure be held accountable for the damage he did (and might still do) to our Republic and its once-sacred norms.
I believe that such a restoration of guardrails, such a reckoning of accountability, is not, to be. As our nation’s chief law-enforcement officer, Garland has so far failed to act in any meaningful way on many of the vital issues confronting our nation and our democracy. Other than half-hearted prosecution of some of the deplorables who on January 6th trashed the US Capitol, Garland has done little more than bemoan and investigate the violations of democracy over which his Department of Justice has purview.
The Department of Justice serves to prevent terrorism and promote the Nation's security consistent with the rule of law; prevent crime, protect the rights of the American people, and enforce federal law; and ensure and support the fair, impartial, efficient, and transparent administration of justice at the federal, state, local, tribal, and international levels.)
The DOJ is (or was) an independent bulwark of the rule of law. As such, it presents (or should) an obstacle to a chief executive’s abusing his or her (or their) power. Biden’s predecessor attempted to remove that obstacle: by undermining its reputation for impartiality, by attacking parts of it directly, by neutering parts of it, and by corrupting parts of it. He did all this with the deliberate intent to reconstitute the DOJ, to subvert its mission from an independent protector of our Constitution and constitutional government. He attempted to morph it from an agency loyal to and protective of the United States and its Constitution to an agency loyal to and protective of him. Wherever an independent DOJ provided a firewall against abuse of power, Biden’s predecessor attempted to weaken or remove it. In this latter attempt, he nearly succeeded.
Despite the high hopes we had of seeing much of that damage quickly reversed, Garland has done dismaying little. Nor, I fear, will he; nor will he voluntarily act to hold Biden’s predecessor accountable.
Since Garland’s assuming office, his DOJ has initiated a few tepid, timid, temperate actions, nearly all of which can reasonably be described as window-dressing. The following do not comprise a complete list; they are simply low-lights:
- Voter suppression—despite paying lip service to the Voting Rights Act, the DOJ has done little to counter widespread, plainly-partisan voter-suppression efforts in Republican-controlled states. Conservative- and white-supremacist-controlled governments in those states have gleefully passed laws that restrict mail-in voting, limit the number and location of polling places, encourage the partisan intimidation of poll workers, dilute the vote of non-whites, and on and on. All of these plainly-partisan measures are deliberate, transparent efforts to suppress the turnout and the impact of non-white voters; it all flies in the face of one-person-one-vote, equal-protection guarantees. These right-wing governments, whether represented by white males or by pathetic, lost souls—glossy, proxy minorities and WINOs (Women In Name Only who identify with white-male-supremacists and who have adopted white-male-supremacist values—are consciously and deliberately implementing a white-male-supremacy ethos.
- In May 2021, the DOJ appealed part of a ruling by Judge Amy Berman Jackson to make public most of a DOJ memo detailing former Attorney General Bill Barr's legal rationale for clearing President Trump of obstruction of justice in the Special Counsel investigation.
- The DOJ has rescinded a number of pro-police polices and opened a number of hand-wringing investigations.
Notwithstanding these indifferent efforts, the repressive agenda that Biden’s predecessor initiated has continued virtually unabated. Biden is a president who is living in the genteel spirit of American-governments past, remembering a time when there existed a principled Republican party comprised of lawmakers whose goals of personal gain were alloyed with a sense of a public good, who possessed enough residual integrity to bargain in good faith with the party in power. That period, an era over which historians will wax nostalgic, is (we hope temporarily) over, but Biden hasn’t, can’t, and won’t recognize and adapt to a present in which those principled Republican he remembers no longer exist. In that sense, Garland is working within a paradigm set by the president who appointed him.
Under this flaccid, Garland-led DOJ, red-state regimes have, with no significant DOJ push-back, attacked not just abortion rights but women’s rights in general, minority and voting rights, and gay and transgender rights, and they have telegraphed clear warnings about further attacks on all of these and others. Certainly a flagrantly right-wing Supreme Court majority has abetted, enabled, and emboldened these efforts, but knowing there will eventually be SCOTUS rejections of its actions does not prevent the DOJ from attempting to slow down this terrible process.
In the face of widespread, corrupt, partisan-redistricting fraud, of intimidation and threats against school-board members, of intimidation and threats against voting officials, of mass-school and –mall and –workplace shooting after mass-school and –mall and –workplace shooting, Garland’s DOJ has issued stern memoranda, filed narrowly-focused lawsuits, and met with law-enforcement officials to explain in no uncertain terms how they can and why they should do better.
Window dressing and lip service.
Garland’s most-egregious failure has been not moving against Biden’s predecessor, not only for crimes committed in office and since, but also for treason, for violations of his oath of office and his deliberate attempts to subvert the Constitution. There is a wide-spread perception that Garland is waiting for the results of the January 6th hearings, but this is a stall. The Department of Justice need not wait for a congressional referral to indict anyone for any crime, much less for treason.
Biden’s “let’s work together” stance has provided cover for Garland’s inaction. But Biden’s reticence to take the gloves off when fighting with thugs is not, in my opinion, the only reason for Garland’s timidity. I think Garland still wants a Supreme Court seat, and unless forced by smoking-gun evidence—say a voluntarily-offered-and-signed confession of treason—he will initiate nothing that might be an excuse for intense, right-wing opposition based on accusations of partisan bias. In case he gets another shot at a SCOTUS nomination, and unless he is somehow forced, Garland will voluntarily do nothing to give right-wing stone-throwers stones to throw. (Those who disapprove of recent, blatantly-partisan attacks on Supreme Court nominees should, just for perspective, review the history of the Robert Bork nomination, taking note of who the stone-throwers were.)
On July 20th, Garland said, “”. On July 26th, a CNBC headline read, “Merrick Garland does not rule out prosecuting Trump over Jan. 6”. On July 26th, the an NBC headline read, “Merrick Garland calls Justice Department’s Jan. 6 probe the ‘most wide-ranging investigation in its history’”. On July 27th, the headline on pundit Harry Litman’s column read, “Garland doesn’t lie — the Justice Department is aiming at Trump”. On July 28th, a CNN headline read, “DOJ prosecutors prep for court battle over Jan. 6 testimony”.
All of these hinting headlines stirred excitement and speculation across the country and around the world: The DOJ is—finally, said no one, but thought everyone—looking at indicting Biden’s predecessor over his actions—and inactions—on January 6th; and his interference with the transition of power. But if one listens to Garland’s words, they are legal platitudes: “wide-ranging investigation,” “without fear or favor,” “above the law,” “faith in democracy.” The most-telling headline snippet: “does not rule out prosecuting.” Even that most-recent headline—”preps for court battle over Jan. 6th testimony”—is a potential stall.
Window dressing and lip service.
And why only post-election crimes? Why only transfer-of-power and January 6th crimes? There were four years worth of crimes—and treasons—the DOJ is free to pursue, free to indict.
Garland is a long-time judge with a studied judicial temperament. (Watch him in the “no one is above the law” clip.) Judges approach issues dispassionately. That’s the job. But the United States Attorney General is not a judge; he’s an action hero. And what we’re not seeing—and I believe won’t see from a man seeking a Supreme Court seat—is the passionate action our country requires right now.
I cannot express how much I long to be wrong, how much I hope to end up with egg on my face staring at a headline that reads, “TRUMP INDICTED FOR TREASON!: But I see nothing that tells me that Merrick Garland is about to become the Action Hero this country so badly needs.