As the White House and leading Democrats continue urging Republicans to hold hearings on Merrick Garland, President Barack Obama’s Supreme Court nominee, progressive groups have adopted the president’s “do your job” slogan while quietly refusing to endorse Obama’s pick.
One of the nation’s leading civil rights organizations released a report Friday outlining its examination of Garland’s record on civil rights and issues of equality, and its findings were less than stellar. The NAACP Legal Defense and Education Fund (LDF) said Garland is “highly qualified to serve as a justice of the Supreme Court,” but the 47-page report pointed out numerous concerns with Garland’s past rulings and opinions, and noticeably did not endorse his nomination.
“Our review of Judge Garland’s record reveals that he is well prepared to serve on our nation’s highest court. He maintains a steadfast respect for the doctrinal and technical contours of the law, forges narrow, carefully reasoned opinions, and builds consensus. In cases involving racial discrimination, Judge Garland seems to appreciate the importance of letting plaintiffs have their day in court and try to prove their case,” the report said. “At the same time, LDF has concerns about Judge Garland’s record in criminal justice cases, which may be influenced by his lengthy professional background and perspective as a former federal prosecutor and senior DOJ [Department of Justice] official. Those concerns are detailed in this report. Thus, LDF finds the need to grant Judge Garland a Senate hearing particularly compelling so that he can share his approach to cases and decision-making in this area.”
— Barack Obama (@BarackObama) April 18, 2016
Many other liberal groups have taken similarly cautious stances, balancing their lack of excitement, and sometimes disappointment, in Garland with their desire to back up Obama and ensure that Senate Republicans do not set a precedent by succeeding in their refusal to consider the Supreme Court nominee. Since his nomination, progressive activists and organizations have expressed outrage over Republicans’ refusal to give Garland a hearing, but few have aggressively advocated on behalf of Garland's record.
Before Obama made his choice, many on the left hoped he would make a historic appointment by choosing a black woman or an Asian justice — two groups that never have been represented on the high court. These hopes were dashed when the president chose a moderate white man, in what was clearly an attempt to pick a “safe” candidate for what he knew would be a grueling nomination process. After Justice Antonin Scalia’s death in February, the Supreme Court is split with four conservative and four liberal judges. This means Obama’s nominee will be crucial in deciding how the court rules on upcoming cases.
Barbara Arnwine, president of the Transformative Justice Coalition, a Washington-based economic and civil rights advocacy group, said she does not support Garland because the president should have nominated a black woman. But she has been measured about expressing her disappointment with the White House.
“Who wants to be an opponent when the majority of his opponents are so alienating, so racist, so just nonsensible, so vicious in attacking the president? And of course I don’t want to be anywhere close to those people,” she said. “I’m sure that’s the way a lot of people who support the president feel, so many keep their mouth shut or toe the line and support what the president has done. I’m a little more vocal because I think it’s important.”
After Garland was nominated, National Organization for Women President Terry O’Neill said it was “unfortunate” the president did not choose a black woman and that he chose someone without a clear record on women’s rights. She even called Garland a “nowhere man.”
“I’m not opposing the president, I want to know more. That’s very important. I believe it is my job to advocate for nominees who will unabashedly advocate for women’s rights,” O’Neill said in an interview this week. But she added her board members are “clearly concerned” about Garland’s record on civil rights, and the lack of hearings has made it tough for her organization to strongly advocate on his behalf. “I want to hear more and know more, and then we’ll be able to advocate,” she said.
— Sherrilyn Ifill (@Sifill_LDF) March 3, 2016
Garland currently sits as chief justice on the U.S. Court of Appeals for the District of Columbia where he has worked for 19 years. While it’s considered one of the most highly respected courts in the nation, its caseload does not include many hot button issues, which has left Garland with little opportunity to rule or give public opinions on topics ranging from criminal justice to voting rights to women’s reproductive rights.
Naral, one of the country’s largest abortion advocacy groups, responded to Obama’s nomination announcement by calling for more information about Garland.
“The lack of information is all the more reason to hold a Congressional hearing and know where he stands,” spokesman James Owens told International Business Times this week. “The American people have been denied core information about where this nominee stands on constitutional questions of women’s privacy, dignity and equality because Republicans refuse to do their jobs."
Just like the LDF, Naral and other prominent women’s groups have so far chosen not to endorse Garland. Cecile Richards, president of Planned Parenthood Action Fund, said in March that Garland “seems like a responsible and qualified nominee.”
“There’s a lot that we don’t know about his judicial approach, and that’s why the Senate needs to do its job and hold a fair hearing and up or down vote,” Richards said.
Republicans announced their intention to block Obama’s nominee within hours of Scalia’s death in February — long before Obama had chosen Garland — drawing accusations from Democrats that Senate Republicans were turning the Supreme Court nomination into a political process. GOP leaders have countered that liberals want to flip the court in their favor and that the Republican position is not ideologically motivated. They would oppose any president nominating a Supreme Court judge during an election year, they say.
“A lot of people say this is just a political fight,” said Owens, the Naral spokesman. “We genuinely do have an interest in finding out where he stands and that’s why we’re calling for a vote.”
These sentiments can also be seen in the LDF report’s treatment of Garland. The report goes through a number of Garland’s rulings as well as legislation passed when he served as principal associate deputy attorney general in the Clinton administration, specifically raising questions about whether Garland supported the 1994 crime bill that expanded the death penalty and encouraged longer prison sentences that has been used as an attack against Democratic presidential candidate Hillary Clinton this year, as well as the 1996 Anti-Terrorism and Effective Death Penalty Act, which liberal scholars have said gutted the writ of habeas corpus.
As with many other liberal groups that have expressed ambivalence over Obama’s nominee, the LDF report is careful to qualify all of its assertions and reiterates that Garland is “highly qualified” many times throughout.
But the report’s muted conclusion is telling. This section lasts just two sentences and ends: “He deserves a prompt hearing in the United States Senate, which should further explore his lengthy record and views, and should conduct a timely, up or down vote on his nomination.”
The NAACP LDF reviews all Supreme Court nominees, and when its report on Garland is compared with its report on Obama’s last nominee, Justice Elena Kagan, the difference in tone is striking. That report is effusive, gushing over Kagan’s outsider status — she was not working as a judge when Obama nominated her — and her experience clerking for former Supreme Court Justice Thurgood Marshall.
That report also called for the Senate to fully explore Kagan’s record, but it clearly had a different conclusion about her than the one about Garland.
“Notwithstanding some concerns detailed in this report, LDF supports Elena Kagan’s nomination to be the next associate justice of the Supreme Court,” the 2010 report said. “Our review of her record leads us to conclude that she has the professional credentials, respect for the institutional roles of all three branches of federal government, intellect and independence of mind, ability to build consensus, and commitment to justice required of one who would serve in this critical role.”
— Barbara Arnwine (@barbs73) March 20, 2016
This time around, while some groups like Al Sharpton’s National Action Network have backed Garland’s record, even the White House has had trouble finding passionate supporters to line up behind Obama’s nominee. In the White House’s roundup of statements after Garland was announced, many groups limited their support to the president himself and the fight for Senate confirmation hearings. The LDF, for example, has been vocal about its disapproval of Republican tactics and has frequently used the president’s “do your job” hashtag.
Part of the problem is the court’s lack of diversity, said Arnwine of the Transformative Justice Coalition. Six of the eight justices are white.
“It would have been a really great signal and a really great opportunity to give African-American women a new uplift by giving them a new role model just like happened with [Sonia] Sotomayor. Sonia Sotomayor has been fantastic for the Latino community,” she said.
When Obama nominated Loretta Lynch to be the country’s attorney general and the Senate was stalling her confirmation process, Arnwine recalled she and other black women marched on the Senate and waged a sit-in to advocate for Lynch.
“That’s what groups do when they really want a candidate, when they feel the person is going to make a positive difference in the country and this person is needed,” Arnwine said. “People have been able to give support to the ‘do your job’ dramatics and that’s been the most effective messaging on behalf of Garland. But there’s a difference between using a hashtag and going to Congress and walking there and demanding on behalf of this person. You haven’t seen what we normally do on behalf of nominees.”