Bench Memos

Law & the Courts

Yes, Merrick Garland Found ‘Hilarious’ a Song About ‘Rapes for Sale’

I was surprised and, I admit, incredulous to run across this recent Breitbart article reporting that Attorney General nominee Merrick Garland, as a college student, wrote a review of the musical The Fantasticks in which he labeled “hilarious” a song that (in his words) “provides a shopping list of rapes for sale (e.g. ‘the military rape—it’s done with drums and a great brass band.’).” But the Breitbart account turns out to be accurate. (Here is Garland’s article from the Harvard Crimson’s archives.)

I have no interest in defending Garland’s observation from his college days nearly fifty years ago,* but I will try to put it in some context. What a theatrical performance can make amusing is often difficult to fathom in the abstract, as Mel Brooks’s The Producers, involving a musical comedy about Hitler, demonstrates. I will note that The Fantasticks (according to this Wikipedia entry) ran, on and off Broadway, for 42 years (from 1960 to 2002), “making it the world’s longest-running musical.” So it would seem that many folks shared Garland’s enjoyment of the song.

Not surprisingly, controversy arose at some point over the “rape” lyrics, leading lyricist Tom Jones to revise them—apparently around 2006—to eliminate the word “rape.”

What bearing, if any, a nominee’s college writings have on his fitness for public office is an issue that has arisen frequently in recent years, and too many folks seem eager to use whatever they can as a club against a nominee they dislike. It seems to me that the proper test is simply one of relevance. Do the writings, fairly construed, reveal an objectionable position that the nominee actually held while in college or a tone beyond the bounds of civil debate? If so, have the years since then shown that the nominee has changed his position or has matured in tone?

So far as I am aware, there is nothing in Garland’s outstanding career of public service that would in any way suggest that he is soft on rape or sexual abuse.

I do strongly suspect that a comparable revelation about a high-level Republican nominee would become national news and threaten the nomination, and President Trump’s Ninth Circuit nominee Ryan Bounds was pounded and defeated over much less. But I don’t think that the existence of a double standard provides cause to embrace the wrong standard.

* One oddity: The archives assign the article the impossible date of January 22, 1776. Breitbart moves the date forward two centuries to 1976. But Garland graduated from Harvard in 1974, so 1976 also seems implausible.

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