Another Dubious Appointment by Joe Biden
Judge Milquetoast for AG
During the last year of Barack Obama’s presidency, there was an opening on the Supreme Court due to the sudden death of right-wing Justice Antonin Scalia. At this time in 2016, the Republicans controlled the Senate, which is the body that confirms or rejects nominees.
Obama’s nominee for the Supreme Court was Merrick Garland, who has been called a “pro-prosecution moderate.” Actually, no one knew where Garland stood on the important issues of the day. He had been appointed by President Bill Clinton to the U.S. Court of Appeals for the District of Columbia, where most of the issues before it concern the federal government, and its relationship to other bodies of state. Hot topics like abortion, flag burning, civil liberties, etc. rarely, if ever, come before the court.
Even so, Mitch McConnell was having none of it. He refused to consider the nomination, either in the Republican-dominated Judicial Committee nor in the full Senate.
About a year later, President Donald Trump nominated Neil Gorsuch, who was confirmed by the Senate, which still had a Republican majority. Gorsuch, another Havard Law School graduate, likely surprised his benefactor by siding with the “liberal” justices in several cases on the Court. In fact in January 2019, Bonnie Kristian of The Week wrote that an "unexpected civil libertarian alliance" was developing between Gorsuch and Sonia Sotomayor "in defense of robust due process rights and skepticism of law enforcement overreach.
It’s too early to say that Gorsuch was a better nominee than Garland, but it’s possible. Only time will tell. It is also impossible to predict what sort of Attorney General Garland will make, but we can speculate from his past record that Justice Garland will be a plodding and cautious AG.
Of all the possible candidates for Attorney General (after all the Democrats are a party of lawyers), why would Biden pick Garland, whose already had his 15 minutes of fame? Is it payback time to Obama for securing the nomination for Biden? And if so, why would Obama promote Garland? Am I missing something? Is Clark Kent really Superman?
The ideal Attorney General at this time would be someone who will support the rights of people of color, women and LBGTQ. Our ideal AG would stand up to the police-industrial complex and take a tough line when it comes to police killings and using military equipment.
What else do we know about Merrick Garland?
Well, it so happens that Justice Garland was the presiding judge in a case I was involved with in my hometown of Venice, California in 2013-14. I wrote about it in 2014 in the Free Venice Beachhead:
Judge Garland Stumbles Over The Venice Post Office
When President Obama nominated fellow Harvard Law School graduate Merrick Garland to the Supreme Court on March 16, 2016, he may have thought he was picking the least controversial judge he could find. Garland has been a judge, and then the chief judge, on the U.S. Court of Appeals for the District of Columbia Circuit, since being appointed by President Bill Clinton 19 years earlier.
After carefully vetting the judge, Obama knew there would be no scandals such as pot smoking, a boyfriend or other social alarm bells that would drive Republicans crazy. And, Obama knew that the judge had never addressed issues such as the death penalty, abortion or gun control. The D.C. Circuit deals mainly with reviewing decisions of federal government agencies, including the U.S. Postal Service. Garland had kept his head down while plodding through federal regulations.
What the President didn’t know was Garland, in at least one case (USCA Case #12-1095; Document #1501235; Filed on July 8, 2014), was either unable to read or understand the plain language in a federal statute, and consequently made a bonehead decision on the case. One attorney, in a polite response, said the decision was “deeply flawed.” In the legal world, incompetence is worse than having political beliefs or puffing on a joint now and then.
What does all this have to do with Venice? Well, the case that Garland fumbled had to do with the Venice Post Office. When word leaked out, in 2011, that the historic Venice Post Office would be up for sale, several individuals and organizations came together under the umbrella of the Coalition to Save the Venice Post Office. The classic Roosevelt-era building with its equally classic mural, The Story of Venice, had been a regular stop on the rounds of generations of Venetians. The building and the mural meant a lot to all of us in Venice.
The fate of our prized public building would be decided 3,000 miles away by Merrick Garland.
The Coalition mobilized Venetians with flyers, rallies and meetings. Since all the decisions were made in Washington D.C., we formulated an appeal to the Postal Regulatory Commission (PRC), which summarily denied the appeal without holding a hearing.
Our Coalition then made contact with a D.C. attorney who had expertise in the byzantine world of federal regulations and requirements. A petition for review of the decision of the PRC in allowing the sale to go forward was filed with the District Court and ended up in the lap of the chief judge, Merrick Garland.
Attorney Elaine Mittleman, acting on behalf of aggrieved Venetians, pointed in her petition to “the plain language of a statutory provision, 39 U.S.C. § 3663” which requires a court review once the petition is filed.
Since this section of the U.S. Code was at the heart of Garland’s mistake, it is reproduced in full:
A person, including the Postal Service, adversely affected or aggrieved by a final order or decision of the Postal Regulatory Commission may, within 30 days after such order or decision becomes final, institute proceedings for review thereof by filing a petition in the United States Court of Appeals for the District of Columbia. The court shall review the order or decision in accordance with section 706 of title 5, and chapter 158 and section 2112 of title 28, on the basis of the record before the Commission.
Judge Garland, in his decision of July 8, 2014, discounts the 2006 law, above, and claims it does not supersede a 1974 provision that exempts post office closings from judicial review until the PRC has made its ruling. Garland took this to mean that no court review was necessary even after a PRC ruling.
Mittleman told me, “I can’t overstate how flawed this opinion is. Agencies must know that their final orders can be reviewed in court – that is part of what should make agencies operate properly. Judge Garland missed this very fundamental point?”
A post office closing, for many people, is the most important decision the post office can make since they are reliant on its services. Judge Garland may not be aware that there are many postal patrons who need a full service post office within walking distance, and many more who take civic pride in the stately, and massive, design that says, “here is a city worth noting.”
Meanwhile, as the legal filings, pro and con, continue, what has been the effect of Garland’s decision to disallow a court review, and a possible reversal of the PRC’s decision to sell the Venice Post Office?
Today, the once-beautiful building looks like an abandoned ruin. An advertising and graffiti-laden plywood fence surrounds the property. No work appears to have taken place in a long while.
The Postal Service sold the building to Hollywood Producer Joel Silver, who said he would remodel the building for use as his company office. Since then several of Silver’s recent films have done poorly at the box office, according to Variety magazine. Contractors’ bills went unpaid, resulting in liens against the property. Little or no work has been done since the liens were filed a year ago.
In addition, the mural that greeted postal patrons in the lobby had gone missing. The Story of Venice painting by noted artist Edward Biberman had hung in the post office since 1941. At the time the building was sold to Silver, he also leased the mural from the Postal Service at no cost. The lease agreement required the mural to be on public display at least six days per calendar year. Concerned Venice organizations did not learn about this provision until after the fact, nor were they provided with a copy of the lease agreement.
In any case, Silver has not complied with this provision, weak as it is. A number of people have told me that they would prefer to have the mural on display at the Venice/Abbot Kinney Library where it could be seen by a steady stream of library patrons during regular hours.
The sad story of the Venice Post Office has been due to the lack of concern by Congress, postal officials, Judge Garland, as well as Joel Silver and his creditors.The lack of support for the postal system by the U.S. Congress in favor of private corporations, like UPS and FedEx, is behind the shrinking role of this needed public service.The USPS, which originated package delivery is now prohibited from “competing” with these private entities, and must pay them to ship its parcels.
The reestablishment of a postal savings bank was floated by both the Venice Coalition and Sen. Bernie Sanders, among others. Such a bank would attract low-income earners that the commercial banks don’t even want.
Instead, the Venice Post Office ran into a meat grinder of fiscal and social irresponsibility which was then compounded by Supreme Court Nominee Merrick Garland.
Neither major party seems to care about improving public service throughout the country and at the Venice Post Office, in particular, an uncaring government would rather cater to large corporations no matter what the cost to the public.
As of 2021, our once beautiful post office is now a derelict hulk in the middle of town. The whereabouts of our mural, The Story of Venice, is unknown. One rumor is that it is locked up in a warehouse in Compton. It has never been displayed in Venice since Joel Silver removed it from the post office. Judge Garland failed our community with his mistaken decision, in spite of the evidence. (see my book, Gentrifying Paradise, for more about the struggle to save the Venice Post Office.)
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Why is there nothing here about Trump?
That’s because every media outlet in the Universe is dwelling on Trump’s Travails. Really, how long can you look at Trump news, or a car wreck? One thing to remember:
Trump is the Past. Biden is the Future. Don’t take your eyes off the ball.
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