Attorney General Merrick Garland might be the ultimate example of the American dream-era baby boomer at the core of today's Democratic Party — especially its elite leadership cadre. The grandchild of immigrants who came to America to flee antisemitism in Russia, Garland grew up in the booming 1960s middle-class suburbs of Chicago, won a scholarship to Harvard and entered the law in the hazy aftermath of the Watergate scandal, when Richard Nixon's resignation fooled many into believing that "the system worked."
Increasingly after 1979 — the year Garland began his first, brief stint in the U.S. Justice Department — the American system didn't work. Deindustrialization and rising inequality devastated working-class communities like those that ring Chicago, while college opportunities like the break that Garland received grew more elusive. The possibly fatal irony for the Democratic Party is that the narrow sliver for whom the system did work — blinding them to the need for radical change and fighting the powers that be — became its leaders.
As the 86th attorney general of the United States, Garland offers much to admire. He moved his confirmation hearing to tears as he spoke of his relatives who stayed in Europe and died in the Holocaust. He's a tireless worker with a dedication to public service, evidenced both by leaving a lucrative job in private practice to become a line prosecutor and his work tutoring underprivileged kids in D.C. Merrick Garland is decent, moral and incorruptible at the moment America desperately needs the one thing he seems not: a brawler for democracy.
Another irony is that before President Joe Biden tapped Garland as the nation's top prosecutor, his name possessed a remarkable symbolism for the so-called anti-Trump "Resistance" that was radicalized to fight the authoritarianism of the 45th president — after GOP Sen. Mitch McConnell shredded off a piece of the Constitution to block Barack Obama from naming Garland to the Supreme Court in 2016. An activist I know with the local group Tuesdays with Toomey was arrested at 2018′s confirmation hearing for Supreme Court Justice Brett Kavanaugh because she stood up and screamed out two words: "Merrick Garland!"
Not too many of the anti-Trumpers who worked tirelessly until The Former Guy was ousted in the 2020 election are screaming Garland's name today. He lost many of them last month when his lawyers said they were continuing the legal pretzel logic of defending Donald Trump in the defamation suit by E. Jean Carroll, the woman who made a highly credible rape allegation from Trump's pre-White House days. That was just an example, though, of the rigid institutionalism of Garland's Justice Department that's brought a reluctance to undo decisions made by his corrupt predecessor, William Barr, as if the preceding four years of lawlessness had been a mirage. His lawyers moved to dismiss a Black Lives Matter lawsuit against the shocking June 1 clearing of peaceful protesters from Lafayette Square, and — most inexplicably — his agency is claiming institutional inertia to withhold the documents around Barr clearing his boss Trump of obstruction of justice.
The Washington Post best summed up the conundrum in the headline for its recent magazine profile of the AG: "Merrick Garland Will Not Deliver Your Catharsis." In the piece, writer David Montgomery quotes Garland on his overriding philosophy that "there not be one rule for Democrats and another for Republicans, one rule for friends and another for foes, one rule for the powerful and another for the powerless." No one disagrees with that ideal, but when it's used for a "don't look back" approach that applies blinders to the corruption of the Trump-Barr era and its dangerous precedents, it squanders a do-or-die moment for restoring democracy. And Garland's caution is just the worst example of warped institutionalist values that could undermine Biden's bold agenda.
- Despite a series of pronouncements and broader initiatives suggesting that Biden and his team understand the existential threat posed by climate change, amid a summer of killer floods and choking wildfires, his administration is inexplicably defending the Trump-era approval by the U.S. Army Corps of Engineers of Enbridge's Line 3 pipeline that will carry dirty tar-sands oil across environmentally sensitive and Indigenous lands in Minnesota.
- Despite promising the voters who elected him that he will work to reduce mass incarceration, Biden's legal team recently stunned experts with a determination that about 4,000 federal inmates who've been successfully kept on home detention because of the pandemic will be returned behind bars as soon as the emergency is deemed over.
- In the most high-profile example, Biden himself and his legislative team continue to defend the filibuster as a cherished Senate institution that can't be dismantled — even to pass voting rights laws that many increasingly see as critical for saving democracy at a time when GOP-led statehouses are enacting repressive laws — despite the large body of evidence that the filibuster is an accident of history that's largely protected white supremacy.
To be fair, Garland — like his boss, Biden — is also pursuing progressive policies that mark a clean break from GOP rule, such as the recent Justice Department action to sue Georgia over its voter-suppression law. But the fear is that the activists who worked so hard to elect Biden and — perhaps more importantly — a frustrated middle class that wants action over nuance will get discouraged over the growing number of times Team Biden seems to shy away from a fight.
Christian evangelical voters end up going to the mat for ungodly politicians like Trump or McConnell because they did whatever it took to get them conservative judges. The Democrats counter a GOP willing to smash the guardrails of democracy with cautious drivers who won't veer near the double yellow lines.
The 2020 election ratified the long-term trend lines in American politics — that the Democrats are becoming the party of the college-educated, while the GOP is increasingly the refuge for voters without a university diploma. Education is, of course, a good thing that creates an electorate with more faith in things like science, which is helpful on issues like COVID-19 or climate change — but in U.S. politics it's a basic math problem. Only 37% of American adults have a bachelor's degree or higher. The Democrats cling to their majority only through a sliver of working-class voters — mostly Black and brown, some remaining whites — who will continue to drift away from a party of cautious, elite institutionalists.
Garland is a poster child for a privileged class at the top of the Democratic Party that values its elite connections (case in point, his daughter Jessica winning a clerkship with liberal Supreme Court Justice Elena Kagan, now on hold during her dad's AG tenure after it was disclosed by writer David Lat), that retains power from contributions from like-minded super-rich cosmopolitans in fields like high tech, and which tends to give a free pass to white-collar criminals who attended the same Ivy League schools or dine at the same fancy restaurants.
What's most worrisome about Garland's first 100 days in running the Justice Department is not the series of bad calls made in the name of institutional inertia, but the dog that has yet to bark: A decision on whether Trump or any of his high-level associates will be held accountable for their role in fomenting the Jan. 6 insurrection, an inflection point for the future of U.S. democracy. Right now, all signs are pointing to another "don't look back" moment that will clear the roadway for some dictator in the not-too-distant future.
In forging a new progressive politics for the 20th century, Democrats these days are frequently invoking the transformative New Deal agenda of Franklin Roosevelt. They should go back and look at the way that a blue-blooded patrician like FDR became an absolute warrior for the American working class, willing to shatter all sorts of D.C. norms and traditions (and make an occasional mistake, like his 1937 "court packing" scheme) to get people back to work and stave off the very real threat of autocracy. The alternative is for cautious Democrats to cement their legacy as the Party of the 37%, aka the minority party.
Will Bunch is national columnist for the Philadelphia Inquirer.