The biggest hurdle for President Biden’s pick of Judge Merrick Garland for attorney general is not Senate Republicans — he has got to get past the Democratic Party’s racial justice activists.
The test for Judge Garland at his confirmation hearing Monday will be how he explains his thin resume championing civil rights.
Judge Garland, who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, has mostly sided with prosecutors and employers in civil-rights cases.
In 10 criminal decisions before the court, Judge Garland disagreed with his more liberal colleagues every time, according to an analysis by The Washington Times.
Employees or job applicants who have alleged racial discrimination have won only three out of nine cases in Judge Garland’s courtroom, the Times found. He ruled for the employer four times and two other cases could be viewed as ties because he granted motions to both sides.
Criminal defendants seeking to appeal their sentences lost nine out of 15 cases involving Judge Garland, according to the Times’ analysis.
Judge Garland’s judicial track record has disheartened civil rights groups, who fear he won’t go far enough to address diversity and racial injustice issues as attorney general.
With Judge Garland’s confirmation hearing scheduled for Monday, those groups are breathlessly hoping he allays their concerns.
“It is a huge disappointment to see Merrick Garland nominated,” said Zakiya Sankara-Jabar, co-founder of Racial Justice NOW! “After the summer we had with George Floyd, we definitely would have liked to have seen an attorney general candidate with more experience enforcing civil rights laws.”
The American Civil Liberties Union this week sent Judge Garland a letter demanding that he commit to certain criminal justice overhauls, including addressing racial disparities in the prison population, cracking down on police use of force, abolishing the death penalty and ordering prosecutors no longer to pursue mandatory minimum sentences.
Cynthia Roseberry, deputy director for policy at the ACLU justice division, wrote in the letter that Judge Garland must “make clear” that he will run the Justice Department with “policies to build a more racially just criminal legal system.”
The Leadership Conference on Civil and Human Rights, one of the nation’s largest and oldest social justice groups, said in a letter last week that while Judge Garland doesn’t have “an extensive body of opinions” in civil rights cases, his decisions have been consistent with “core civil rights principles.”
The group endorsed Judge Garland for attorney general, but also urged senators to ask questions about his views on criminal justice and civil rights.
Even before the Garland nomination was announced, social justice warriors were pressing Mr. Biden to pick a candidate who would prioritize civil rights.
Mr. Biden, who pledged to make his Cabinet the most diverse in history could have picked from several qualified Black candidates for the attorney general job.
Racial justice advocates say his choice of Mr. Garland, and reports that all the finalists also were White, is a slap in the face. Former Massachusetts Gov. Deval Patrick was the only Black man said to be in the mix, but he was never seen as a serious contender.
Black voters in the South rescued Mr. Biden’s campaign from oblivion during the Democratic primary. In the presidential election, Mr. Biden attracted about 87% of the Black vote. In his presidential victory speech, Mr. Biden thanked Black voters and promised to always have their backs.
Ms. Sankara-Jabar remains skeptical.
“If you are going to have our backs, then you need people in the administration that have that attitude, including Merrick Garland,” she said.
Charles Wilson, chairman of the National Association of Black Law Enforcement Officers, defended the pick of Judge Garland as “an excellent choice.”
Mr. Wilson conceded that Judge Garland’s civil rights record is soft, but said the choice will rankle Republicans who refused to vote on his nomination to the Supreme Court in 2016.
“He is a good choice, if for no other reason than sticking it up Republicans’ ass for the blow-off they gave him,” he said.
Ms. Sankara-Jabar said she would have preferred former Sen. Doug Jones, Alabama Democrat, as Mr. Biden’s choice as the nation’s top cop.
Mr. Jones, who is White, does have a stronger racial justice resume than Judge Garland. As U.S. Attorney for the Northern District of Alabama, Mr. Jones successfully prosecuted members of the Ku Klux Klan who were responsible for bombing a Black church in 1963.
“Jones understands our lens more than Merrick Garland,” Ms. Sankara-Jabar said. “That would have been an improvement, certainly.”
Judge Garland’s strongest action on racial justice came in the mid-1980s when he represented the first Black stenographer at the House of Representatives. The stenographer, Betty G. Browning, claimed her firing was racially motivated.
Judge Garland worked on the case pro-bono, but lost after the court he now sits on held that Congress can’t be sued. The ruling, however, did convince Congress to adopt its own rules to prevent racial discrimination.
Despite the concerns about Judge Garland, civil-rights groups say they are energized by Mr. Biden’s nominee for the No. 3 position at the Justice Department, Vanita Gupta.
Ms. Gupta led the Justice Department’s Civil Rights Division during the final years of the Obama administration. Since leaving the department, she’s headed up the Leadership Conference on Civil and Human Rights, a coalition of more than 200 civil rights organizations.
If confirmed as associate attorney general, Ms. Gupta would lead a broad range of “civil justice, local law enforcement, and public safety matters.”
Her nomination has received mixed reviews. The National Fraternal Order of Police — a group that endorsed former President Donald Trump twice — praised the choice. But the conservative Judicial Crisis Network has slammed her as someone who supports defunding the police and other far-left causes.
“We are really excited about her,” Ms. Sankara-Jabar said. “We hope that she has the power and leverage to act through a racial justice lens and that Merrick Garland would hopefully not intervene in that.”
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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