Merrick Garland Is a Legal Mystery


U.S. President Barack Obama and Judge Merrick Garland, the president's nominee to replace the late Supreme Court Justice Antonin Scalia, and Vice President Joe Biden leave the Rose Garden at the White House on March 16. Chip Somodevilla/Getty Images
U.S. President Barack Obama and Judge Merrick Garland, the president's nominee to replace the late Supreme Court Justice Antonin Scalia, and Vice President Joe Biden leave the Rose Garden at the White House on March 16. Chip Somodevilla/Getty Images

President Obama announced in March that he's nominating Merrick Garland, currently chief judge of the U.S. Court of Appeals for the D.C. Circuit, to succeed Antonin Scalia on the U.S. Supreme Court.

And if ever the country needed a Merrick Garland.

The president would have been hard-pressed to find a less politically controversial nominee, who he says has the "rare ability to ... persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions." Garland is so highly respected on both sides of the aisle that Fox News called the nomination a political trap designed to embarrass Republicans if they oppose him.

Most see the 63-year-old, who has sat on the D.C. Circuit Court for 19 years, as a moderate. He's known for his "meticulous legal reasoning," say NPR's Nina Totenberg and Carrie Johnson, and a notable rejection of judicial activism. Jeffrey Rosen writes in The Atlantic that he's the "embodiment of bipartisan judicial restraint."

Garland "sincerely believes that a judge 'must put aside his personal views or preferences, and follow the law—not make it,'" Rosen says, quoting Garland's speech accepting the nomination.

The judge has been on Obama's short list of potential nominees twice before: In 2009, when Sonia Sotomayor ultimately got the nomination, and in 2010, when Obama went with Elena Kagan.

In 2010, Republican Sen. Orrin Hatch called Garland "a consensus nominee" and said he'd help him get the votes for confirmation were he nominated.

Getting to Know Garland

Garland has the background for it. Among other accomplishments, he graduated first in his class at Harvard College, clerked for Supreme Court Justice William J. Brennan, went on to serve as special assistant to the U.S. Attorney General and then became a federal prosecutor. Garland ran the investigations into both "Unabomber" Ted Kaczynski and the Oklahoma City bombing. President Clinton appointed him to the D.C. Circuit Court in 1997 with support from both sides of the aisle.

Yet after nearly 20 years as a judge, his record offers few clues to where he stands on many of the social issues that dominate conversations about Supreme Court nominees. As Totenberg and Johnson note, the D.C. Circuit Court "deals mainly with regulatory issues and not hot-button social issues of the day, such as abortion and gay rights."

Garland has never issued an opinion in an abortion case or made a statement indicating his position on the topic. Likewise, no one seems to know where he stands on gay rights or the death penalty — though he did put together the legal team that won the death penalty case against Timothy McVeigh.

On Guns and Guantanamo

Notably, in 2003's Khaled Al Odah v. U.S., Garland voted with the majority in finding that federal courts do not have jurisdiction over cases related to rights violations at the Guantanamo Bay detention center. The ruling would have made it more difficult for detainees to seek legal recourse had the Supreme Court not reversed it.

His votes on campaign finance have been mixed. So have his findings on religious freedom — which Julie Zauzmer points out in the Washington Post often undergirds "national debates over the death penalty, gay rights, abortion" and other socially divisive issues.

Anti-abortion groups take issue with Garland's vote against reviewing the court's decision in Priests for Life v. U.S. Department of Health and Human Services. In the high-profile, 2014 lawsuit, Priests for Life argued that requiring religious objectors to opt out of the contraception-coverage mandate in the Affordable Care Act violates their religious freedom because opting out is overly burdensome. The partial court panel that heard the case, which did not include Garland, determined opting out was not overly burdensome and found for the government. Priests for Life requested another hearing before the full court, and Garland voted with the majority to deny it. (The case is now headed to the Supreme Court.)

The quest to uncover Garland's views on controversial social issues may ultimately prove pointless, because he may never get a confirmation hearing. The Republican-controlled Senate says it won't give Garland a hearing until after the presidential election, and then only if a Democrat takes office. Although, in a recent development, Republican Sen. Mark Kirk did meet with Garland on Tuesday, the first Republican to do so, and called fellow Republicans "close-minded" for not even considering it.

In any case, if a Democrat wins office and stays with Garland as the nominee, he'll get his hearing — and maybe let slip some hint to the personal views he sets aside when he makes his rulings.



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