by Mitch Kokai
Senior Political Analyst, John Locke Foundation
During a Tuesday Senate Judiciary Committee hearing, Attorney General Merrick Garland refused to take responsibility for the Department of Justice’s (DOJ) failure to prosecute protesters who regularly demonstrate outside the homes of conservative Supreme Court justices, arguing that the federal marshals on the ground have the discretion to arrest the protesters and have chosen not to.
In his first appearance before the 118th Congress, Garland was grilled by Republican senators about the DOJ’s failure to enforce a federal law that prohibits protests outside the homes of judges and jurors, who might be intimidated into changing their thinking on pending cases in response to such displays. Since the draft opinion in the Dobbs case, which ultimately overturned Roe v. Wade, was released, protests outside the justices’ suburban homes in Virginia and Maryland have intensified.
“You just said yes, it’s a crime to protest at the home of a judge. Same goes for jurors, by the way, with the intent of influencing a case. But in the wake of the leak of the Dobbs decision, when rioters descended on the homes of six Supreme Court justices, night after night after night, you did nothing,” Senator Ted Cruz said to Garland. “The Department [of Justice] did nothing.”
Cruz repeatedly asked the attorney general whether a single prosecution has been brought against such protestors.
“Why are you unwilling to say no? You know it’s ‘no.’ I know it’s ‘no.’ Everyone in this hearing room knows it’s ‘no,’” said Cruz. “You’re not willing to answer the question.”
“How do you decide which criminal statutes the DOJ enforces and which ones it doesn’t?,” Cruz continued. …
… Cruz countered: “The marshals do not make a determination over whether to prosecute. You, the attorney general, make a determination. You spent 20 years as a judge and you’re perfectly content with justices being afraid for their children’s lives.”