News Release

“Bush Would Have Nominated Garland”

Caplan-Merrick-Garland2-1200MARJORIE COHN, marjorielegal at gmail.com, @marjoriecohn
Cohn is professor at the Thomas Jefferson School of Law. She said today: “President Obama has an opportunity to nominate a progressive justice. Merrick Garland does not fit that bill. He is to the right of Scalia on criminal defense issues, and he voted to deny Guantanamo detainees habeas corpus to challenge their detention. Garland said his experience as a prosecutor is what best qualified him to be a judge, stressing guilt but not mentioning the protection of constitutional rights.

“The Constitution requires the President to fill a vacancy on the Supreme Court, and the Senate must at least consider the nomination. By refusing to even take up Garland’s nomination, the Republicans may be shooting themselves in the foot. A future Democratic president may nominate someone more liberal than Garland, and if the Democrats take back the Senate, that nominee could be confirmed. Indeed, Richard Painter, chief ethics lawyer in the George W. Bush White House, wrote in theNew York Times that he would have counseled Bush to nominate Garland, ‘a consensus candidate,’ if a vacancy arose during Bush’s last two years in office.” See: “Bush Would Have Nominated Garland.”

Also see New York Times news story by Charlie Savage: “In Criminal Rulings, Garland Has Usually Sided With Law Enforcement.”