Despite Republican talking points, Merrick Garland would not be the Scalia of the left

While Mitch McConnell's NRA overlords and the rabid attack dogs will try to paint President Obama's Supreme Court nominee, Merrick Garland, as some kind of radical left, activist version of Antonin Scalia, the reality of Garland is far from that. For example, his record on criminal justice might even be to the right of Scalia who, apart from insane views on the death penalty, expanded criminal defendants' rights in significant cases. He's also proven to be a cautious jurist, unlikely to rock the boat or break precedent. As an appeals court judge, Garland has "often deferred to the policy choices of lawmakers, to regulations developed by federal agencies and to the actions of police and prosecutors." He'd likely vote with the liberals on most cases, but seems unlikely to be anxious to do something like overturn Citizens United or Heller or rule the death penalty unconstitutional.

Garland's reluctance to rock the boat shows up most disturbingly in a case where civil rights groups, death penalty lawyers, and other legal observers have accused him of protecting a federal judge charged with ethics violations: Texas Judge Edith Jones of the 5th Circuit Court of Appeals, a Reagan appointee. A formal ethics complaint was lodged against Jones following a 2013 Federalist Society lecture in which she "made a number of inflammatory comments, including suggesting that blacks and Hispanics are 'predisposed to crime' and 'prone' to violence." She also opined in the lecture that it is a "disservice to the 'mentally retarded' to exempt them from the death penalty." The complaint was kicked to Supreme Court Chief Justice John Roberts, who handed it off to Garland at the D.C. Circuit. Garland appointed more judges on the panel to comprise a committee with him to review the complaint.

During the Jones investigation, only two people were allowed to testify before Garland's committee: Jones herself and Marc Bookman, a Philadelphia death penalty lawyer who attended her speech and helped file the complaint. Maurie Levin, one of the lawyers for the complainants, says the investigation was "blanketed in secrecy and bias." She notes that although Bookman was cross-examined by Jones' attorney, Jones testified in secret, without any of the complainants in the room. […]

"The judicial panel that investigated the complaint—presided over by Judge Garland—twisted itself into a pretzel to find that Judge Jones would face no consequences, and dismissed the complaint," says Levin. "It is difficult to imagine that action instilled confidence in Judge Jones' impartiality in the African American and Hispanic communities." She says the process raises the question of whether Garland and his fellow judges were "more interested in protecting [their] brethren than rooting out bias in the administration of justice."

That's a not a particularly encouraging story for anyone who believes that the Supreme Court needs to take judicial ethics seriously, not to mention that the judicial code of conduct should apply to the SCOTUS the same as the rest of the federal judiciary. But it also makes Republican complaints about this nominee look just like what they are, one-size-fits-all baseless partisan attacks. Unless he's been holding himself in waiting for the SCOTUS confirmation before unleashing his radical self, Garland isn't the nominee that would set the court on a new, legacy-setting liberal course, whatever the right will say about him.