SCOTUS nominee Merrick Garland 'a serious man and exemplary judge'

(This story originally appeared on Benefits Pro's sister publication National Law Journal.)

Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit and a former U.S. Justice Department lawyer who led the investigation of the 1995 Oklahoma City bombing, was nominated Wednesday to the U.S. Supreme Court.

In the weeks leading up to the nomination, many observers saw Garland, 63, as a consensus pick for the president — a judge who, despite a long paper trail and tenure on the bench, has kept a low public profile and isn’t known for staking out controversial positions.

Speaking from the Rose Garden, President Barack Obama said Garland was widely considered “one of America’s sharpest legal minds” and was known for his “deep and abiding passion for protecting our most basic constitutional rights.”

“I chose a serious man and exemplary judge, Merrick Garland,” Obama said, flanked by Garland and Vice President Joe Biden.” Over my seven years as president, in all my conversations with senators from both parties, in which I asked their views on qualified Supreme Court nominees — and this includes the previous two seats that I had to fill — the one name that has come up repeatedly, from Democrats and Republicans alike, is Merrick Garland.”

His name was mentioned twice before as a potential high court nominee under Obama for vacancies that ultimately went to Justices Sonia Sotomayor and Elena Kagan in 2009 and 2010, respectively. Garland is older, by more than a decade, than several other judges who were considered contenders for Scalia’s seat. Scalia died on Feb. 13 at age 79.

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An Illinois native, Garland was confirmed to the D.C. Circuit in 1997 with bipartisan support — he was widely praised for his work in Oklahoma City — and is considered a moderate on the bench with a deep prosecutorial résumé. The president chose Garland over several other judges, including Sri Srinivasan of the D.C. Circuit and Paul Watford of the Ninth Circuit.

Garland, choking up as he talked about his family, his career as a prosecutor working with victims of crime and his time on the bench, on Wednesday said the nomination was “the greatest honor of my life,” other than his wife Lynne agreeing to marry him 28 years ago. He added that it was a “great privilege” to be nominated by Obama, a fellow Chicagoan.

“Fidelity to the constitution and the law has been the cornerstone of my professional life, and it is the hallmark of the kind of judge I have tried to be for the past 18 years,” Garland said. “If the Senate sees fit to confirm me to the position to which I’ve been nominated today, I promise to continue on that course.”

Garland has largely avoided the spotlight since becoming chief judge more than three years ago. He rarely comments in the press and makes few public speaking appearances. He stayed out of the limelight as Republicans tried to block Obama in 2013 from appointing new judges to the D.C. Circuit. His public-facing initiatives have included holding arguments several times a year at D.C.-based law schools.

Garland’s confirmation is far from certain — and could be doomed from the start. Senate Republicans have vowed for weeks to refuse to hold hearings or vote on any high court nominee during this election year. Obama’s announcement insures that the high court, already a flashpoint in the presidential race, becomes an even greater point of contention.

“They tell you in Washington that if you want a friend get a dog. Harry Truman said that. That is not true. Get a family,” Garland, who is married with two daughters, said in 2013 at an event at Georgetown University Law Center. “This is a hard place to be. No matter how much honor you have, people will attack you one way or the other. And the principle solace that you get is from your family.”

Law professors, Supreme Court advocates, former judges and Big Law attorneys have urged the Senate to take up the president’s nomination.

Unlike Srinivasan, Garland has never argued in the Supreme Court. But he is connected in another way: as a top feeder judge to the high court. Since joining the D.C. Circuit, Garland has sent more than 40 of his clerks to work for justices across the spectrum, from Chief Justice John Roberts Jr. to Justice Stephen Breyer. Garland himself clerked for Justice William Brennan in 1978 and 1979.

Liberal groups see Garland’s reputation as a moderate as a strength and a weakness. In 1997, when he was nominated to the D.C. Circuit, and in 2010, when he was on the short list for the Supreme Court nomination that ultimately went to Kagan, some liberals complained that Garland was too much a centrist.

But that also worked to his favor: He was considered less likely to provoke strong opposition from Republicans.

Garland on campaign finance, firearms

The next appointment to the Supreme Court could give liberals a 5-4 majority, at least temporarily. Observers say a liberal majority on the court could tighten restrictions on firearms and, in the political arena, dial back the influence of money in elections.

Garland wasn’t on the three-judge panel that struck down the District of Columbia’s handgun ban in March 2007. He was among four D.C. Circuit judges that voted, unsuccessfully, for the full court to rehear the case. The Supreme Court in 2008, in an opinion written by Scalia, upheld the D.C. Circuit decision.

Garland wrote the opinion in Wagner v. Federal Election Commission in July 2015 that upheld the ban on campaign contributions by federal contractors.

“Because the concerns that spurred the original bar remain as important today as when the statute was enacted, and because the statute is closely drawn to avoid unnecessary abridgment of associational freedoms, we reject the plaintiffs’ challenge,” Garland wrote.

Garland’s supporters point to his 2008 opinion in Parhat v. Gates as an example of his skill in working with Republican-appointed colleagues to advance progressive principles.

In Parhat, the unanimous panel — including two Republican appointees — reversed a determination by a Combatant Status Review Tribunal that a detainee at the U.S. military facility at Guantánamo Bay, Cuba, was an “enemy combatant.”

“To affirm the Tribunal's determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion,” Garland wrote.

Garland has ruled for and against the government in transparency cases. In 2011, he wrote the opinion upholding the public release of information about cases in which law enforcement used cellphone location data to track suspects. He was on a three-judge panel in May 2013 that said that the U.S. government could not be forced to release photos and video of Osama bin Laden from the raid when the terrorist leader was killed.

“It is undisputed that the government is withholding the images not to shield wrongdoing or avoid embarrassment … but rather to prevent the killing of Americans and violence against American interests,” the panel said in an unsigned ruling.

Rise to the bench

Garland, who grew up in Lincolnwood, Illinois, a northern suburb of Chicago, graduated from Harvard Law School in 1977. Besides Brennan, Garland clerked for the late Judge Henry Friendly of the Second Circuit, who is widely praised as one of the “greatest” judges in modern times for his influential opinions and the scores of law clerks who went on to achieve success as lawyers and on the bench, including Roberts.

Garland has named Friendly and former federal appeals judge William Webster, who later led the FBI and the CIA, as two major influences.

“The one thing that I really felt was a legacy that he left for the clerks was that this idea that law is just politics by another name is not true,” Garland said in 2012 about Friendly. “And I never, ever felt that he was reaching a result because — either politically in a small ‘p’ or ideologically or ‘p’ in a big ‘p’ — that it made any difference to him. He was trying to reach what he thought was the right results.”

Garland spent two years as a Justice Department lawyer before he joined Arnold & Porter, where he made partner. From 1989 to 1992 he served as an assistant U.S. attorney in Washington, and then rejoined Arnold & Porter for a year before returning to the Justice Department in 1993 as deputy attorney general for the Criminal Division. The following year, he became principal associate deputy attorney general.

In that capacity he supervised the Justice Department’s investigation into the bombing of the Oklahoma City Federal Building in 1995 and the prosecution of the so-called “unabomber,” Ted Kaczynski.

When he was up for the D.C. Circuit, his nomination was delayed amid a dispute over whether the D.C. Circuit needed more judges — a long-standing point of contention between Republicans and Democrats that would play out again over Obama’s nominees to the court during Garland’s tenure as chief judge.

On the bench, Garland is an active questioner of the lawyers in front of him. He has often described a collegial court. One benefit of being the chief judge is that Garland gets to assign opinions in the cases he hears on three-judge panels.

“I think the public at large has seen the last opinion ever written by Judge Garland on energy law,” D.C. Circuit Judge Thomas Griffith said in 2013, shortly after Garland became chief judge, drawing laughter from the audience.

Garland has said he hires clerks who are “willing to say no” to him — ”in a nice way.” Garland writes his own opinions. He said he reads the briefs and the case record for “an unfiltered view of what the litigants are arguing.”

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(This story originally appeared on Benefits Pro's ALM sister publication National Law Journal.)

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