Corporate Media’s ‘Ideal’ Supreme Court Nominee Embraced ‘Legal Black Hole’ Theory

The New York Times depicted Barack Obama applauding his Supreme Court nominee Merrick Garland. Not pictured: the Times’ own applause. (photo: Doug Mills/NYT)

“If you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland,” declared the New York Times editorial board (3/16/16), describing Barack Obama’s nominee as “a deeply respected federal appellate judge with an outstanding intellect, an impeccable legal record and the personal admiration of Republicans and Democrats.”

The Washington Post editorial (3/16/16)  was similarly effusive, calling Garland “unusually well-respected across the ideological spectrum,” “an ideal nominee in these divided times,” “eminently reasonable” with “a reputation for thoughtfulness.”

That seemed to be the consensus in corporate media–that Obama had picked the perfect nominee, and the Republican Senate should do its job and give him an up-or-down vote. But is Garland really so ideal?

As a candidate in 2008, Obama praised a Supreme Court ruling that affirmed that prisoners had a right to habeas corpus regardless of where they were held, calling it “a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo” (New York Times, 6/13/08). But that ruling was a reversal of an appeals court ruling that Garland had voted for; if you’re glad that the Supreme Court rejected the legal black hole theory, why put another judge there who embraced it?

As SCOTUSBlog (4/26/10) noted when the former prosecutor was considered a potential nominee in 2010, “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions,” often splitting from his more liberal colleagues. As many such issues now split 4/4 among the current justices, this means that with Garland the court would often side with the state on criminal justice issues. For many people, including many who voted for Obama, that’s far from an “impeccable legal record.”

Jim Naureckas is the editor of FAIR.org. Follow him on Twitter: @JNaureckas.