Merrick Garland: The People’s Lawyer

merrick garland

It was a different tone in Congress on Monday, February 22, five years after Merrick Garland was shunned by the Republican Party – not  given the time of day, not the courtesy of a hearing for the Supreme Court nominee that Barack Obama carefully selected as someone who might be palatable for his foes across the aisle. But it was not Merrick Garland they were shunning as much as Obama who Mitch McMcConnell pledged at the time to defy every step of the way.

But that was then and this is now. And Joe Biden in his infinite wisdom nominated Judge Garland to be the top cop for the United States. And if we can’t have him on the Supreme Court then what better place than heading up the Department of Justice at a time when cannabis legalization is on the table, the psychedelic renaissance is taking off like a tumbleweed on a windy beach, and white supremacy has morphed into a homegrown terror organization.  

This time Merrick Garland was received with a modicum of cordiality. Although watching Ted Cruz question him  made me wonder if Cruz was jet lagged or had one too many from his quick jaunt to Mexico and forgot that it was the Trump administration Justice Department and Bill Barr that played partisan politics and not the Obama one.

“Five years after failing to give him a hearing as a Supreme Court nominee, Republican senators were generally cordial in their questioning of Merrick Garland, President Biden’s nominee for attorney general.

For the most part. Lindsey Graham, for instance, is and always has been a rebel rouser and in my humble opinion, two faced. 

““I think you’re a very good pick for this job,” said Sen. Lindsey Graham, R-S.C., who previously served as Judiciary chairman.”

Now he thinks so. 

“Garland was appointed to the federal appellate bench in 1997 by then-President Bill Clinton and was nominated to the Supreme Court in 2016 by then-President Barack Obama. Senate Republicans — including Grassley and Graham — blocked holding a public hearing for his nomination, eventually allowing President Donald Trump to fill the seat with conservative Justice Neil Gorsuch.”

Graham had also opposed an earlier confirmation hearing for Garland’s nomination for attorney general.” 

But let’s move on. This is Merrick Garland’s hour and not a rehash of what we already know: Lindsey Graham is a partisan sycophant who should have been voted out to pasture last November. Or the definition of hypocrite are the doings of Ted Cruz.

 In contrast Merrick Garland is a humble man who seems to not take anything for granted. 

“You’re going to be confirmed. I’ll bet my farm in Vermont on that,” said Sen. Patrick Leahy, D-Vt., after his questioning.

“Never ask anybody to bet that, senator,” replied Garland, laughing.

This is a humbling moment for a man who would have made a fair and decent and non-partisan judge if he was given the courtesy and if Barack Obama was given the courtesy of following the constitution in 2016. And it’s about courtesy and not bullying because constitutionally it seemed sound.  

“In a speech that August in Kentucky, McConnell would say: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’ “

“The court had to convene that October with only eight justices, divided often between the four appointed by Democrats and the four appointed by Republicans. Short-handed, the court deadlocked on a number of issues and declined to hear other”

“Scores of scholars — law professors, historians and political scientists — urged the Senate to at least have a process for Garland as a duly appointed nominee with impeccable qualifications. But some lawyers and academics pointed out that the Constitution empowered the Senate to “advise and consent” but did not require it do so. (Some adding that they thought the Senate still ought to do so.)”

“A federal lawsuit was filed to compel McConnell to hold a vote on Garland. It was thrown out because a judge said the plaintiff, as an ordinary voter, had no standing to sue.”

I beg to differ with the judge. If an ordinary citizen, probable voter,  cannot file a lawsuit against McConnell and the Senate then what is the very point of our system of jurisprudence?   Perhaps it’s a case that has to do with a matter of law and is not the word speedy written in there somewhere? 

“Justices will also take a case when the lower courts cannot agree on how to interpret the law involved, or in which different lower courts have interpreted the law differently. When the lower courts decide cases differently, it can lead to confusion.”

So here we are all these years later with a river under the bridge. The ordinary citizen who sued to compel the vote: due process might have truly been stalled at the highest level for tit for tat personality politics. The highest court in the land interrupted from doing its job because of Mitch McConnell and the GOP’s habit of making up the rules as they go along. But there is karma. And the karma is that Judge Merrick Garland will be confirmed as our new Attorney General. This humble human being who was treated with shameless discourtesy is now in a position to impact how “voraciously” the laws are implemented and enforced in the country. 

“The Attorney General is the Head of the Justice Department and the attorney for the United States in all legal matters. They dispense legal advice to the president and the heads of other governmental agencies when requested. The Attorney General may support important cases that go to the Supreme Court of the United States if the case is deemed important in nature.”

“The Attorney General is also responsible for making sure the law is enforced impartially and fairly, leading to examinations of alleged violations of the law. Responsible for U.S. Attorneys throughout the country, the Attorney General may provide guidance interpreting the law to assist in prosecuting or defending the United States in legal proceedings. The Attorney General also oversees the federal prison system and all of the systems that pertain to it.”

This is huge when it comes to cannabis reform and how our criminal justice system treats people of color. But before we touch upon that let’s look at who Merrick Garland, the man is, and what qualities he brings to the job which could, dare I say, influence why he will be a lawyer for the people.

“I do not regard myself as anything other than the lawyer for the people of the United States. I am not the President’s lawyer. I am the United States’ lawyer,” Garland said, in response to a question from Senator Ted Cruz of Texas about whether Garland would be Biden’s “wingman.”

Merrick Garland is no stranger to generational injustice. His grandparents fled antisemitism and persecution and that alone lends perspective to discrimination and stigmatization. His emotional response to Senator Cory Booker’s  (D, N.J.) questions brings me back to something I like to say people show you who they are, it’s a combination of words and demeanor. If we as a nation choose to pay attention demeanor speaks volumes. 

“I come from a family where my grandparents fled antisemitism and persecution,” the erudite and soft-spoken judge said before pausing for several seconds to gather himself. “The country took us in and protected us, and I feel an obligation to the country to pay back — this is the highest, best use of my own set of skills to pay back. I want very much to be the kind of an attorney general that you are saying I could become.”

As the fifth Jewish person in the Biden Cabinet which is a great honor for my tribe and after reading about the accomplished women surrounding him if this ordinary citizen could vote, then I cast mine for yes.

He’s our new superman who is committed to standing up against the growing movement of white supremacy, antisemitism that’s choking the air out of what is principled and good in this country, and inhumane practices like child separation. 

“He committed to staying apolitical and said the US faces a “dangerous” threat from domestic extremists.”

“Garland also expressed opposition to the death penalty and said he couldn’t “imagine anything worse” than Trump’s child separation policy.”

“Garland would be the fifth Jewish official in President Joe Biden’s Cabinet. When Sen. Mike Lee, R-Utah, pressed him on whether he would work with antisemites, alluding to conservative media attacks on Kristen Clarke, whom Biden has nominated to head the Justice Department’s civil rights division, Garland defended Clarke and said in a rare show of annoyance: “Senator, I’m a pretty good judge of what an antisemite is.”

When probed on issues that had wisps of partisanship he promised an open fact based mind.

“I’m telling you what I think an attorney general ought to do, which is to look at the facts before making a decision,” Garland said. “I’m also telling you I will never make a decision in the department based on politics or on partisanship. So whatever decision I were to make, it would not be based on that.”

How will this open fact based mindset and sensitivity to people who have been persecuted and singled out reflect on his strategy towards cannabis reform and the racial disparities in law enforcement? As Attorney General he would be in a position to alter the nation’s relationship to weed. Senator Booker asked Merrick Garland about “racial disparities in law enforcement in general and in cannabis enforcement specifically” and he was clear in his response:

“The marijuana example is a perfect example. Here is a nonviolent crime that does not require us to incarcerate people and we are incarcerating at significantly different rate(s) in different communities. That is wrong and it’s the kind of problem that will then follow a person for the rest of their lives. It will make it impossible…to get a job and will lead to a downward economic spiral.

“We can focus our attention on violent crimes and other crimes…and not allocate our resources to something like marijuana possession. We can look at our charging policies and stop charging the highest possible offense with the highest possible sentence.” 

Merrick Garland’s understanding of how cannabis reform can impact for the better communities of color and low income communities is a departure from previous administrations in the understanding of how the war on drugs and cannabis specifically has enabled systemic racism. He committed to diverting Justice Department resources away from non-violent cannabis enforcement. 

“Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one. Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system. It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty.”

Merrick Garland also understands that the majority of cannabis offenses take place at the state and local levels and so a “new approach” is required. He realizes that “equity in the enforcement of cannabis laws requires leadership at the federal level”. 

“Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders. By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.”

“The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.”

Granting clemency to nonviolent cannabis offenders is yet another important step towards restorative justice. 

“He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others. That proposal urges President Biden to pardon non-violent cannabis offenders.”

Judge Garland’s words and background are inspiring for the moment the country finds itself in – faced with injustices that have simmered far too long and many coming to an ugly head – if confirmed hopefully he will be able to put his words and moral code into action to make long overdue lasting  policy reforms and to keep the country safe from the growing threat of white supremacy. 

Author: Sherri Margolin (Dark Matters)

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