It’s problematic enough that Elena Kagan seems to be considered the clear front-runner for a Supreme Court nomination. What’s worse is that she’s not the weakest candidate of the three names that most commonly show up on shortlists. That would be Merrick Garland:
Those prosecutorial experiences helped shape his approach to the law. While he is known as a centrist or a moderate liberal in most areas, his rulings suggest that he could be more of a center-right justice in matters of criminal law. His record has helped make him the potential nominee to succeed Justice John Paul Stevens who would stand perhaps the best chance of avoiding a partisan confirmation fight.
Still, he can be somewhat more sympathetic to prosecutors than are other Democratic appointees, interviews with such lawyers and a preliminary analysis by The New York Times of split decisions in criminal cases suggest.
For example, in cases in 2003 and 2007, the court divided on whether to suppress certain evidence on the grounds that police officers had obtained it as a result of an allegedly unconstitutional search. In both cases, another Democratic appointee sided with the defendant, while Judge Garland voted to allow prosecutors to use the evidence.
Garland, in other words, would be an unacceptable nominee for a Democratic president in any circumstances, let alone in the context of an about-to-disappear 59 Senate seats under Democratic control. Kagan is essentially a blank slate with a few disturbing signs in her record; Garland has an actual record on civil liberties that should remove him from consideration.
Or, to put it another way, Garland has earned the strong endorsement of Stuart “Sam Alito will be a reasonable moderate with no ideological agenda” Taylor. Enough said.