President Barack Obama’s decision to nominate Merrick Garland to the Supreme Court Wednesday morning means that at long last, the oft-short-listed candidate finally gets his shot.
Garland is the chief judge for the U.S. Court of Appeals for the D.C. Circuit, appointed by President Bill Clinton in 1997. A former clerk for Justice William Brennan, he’s served in private practice and at the Justice Department.
Garland, 63, was confirmed by a 76-23 vote. Obama previously considered him for the seats that ultimately went to Justices Sonia Sotomayor and Elena Kagan.
Garland’s grandparents settled in Chicago after fleeing anti-Semitism in Russia. The judge’s father ran a small business from their basement and his mother headed the local PTA and school board and directed a volunteer services agency.
After graduating summa cum laude from Harvard, which he attended on scholarship, he put himself through Harvard Law School by working as a tutor, by stocking shoes and, “in what is always a painful moment for any young man, by selling his comic book collection,” Obama said while introducing his nominee Wednesday.
Experience
The White House is positioning Garland as an experienced judge who bridges the ideological divide.
“Judge Garland has earned a track record of building consensus as a thoughtful, fair-minded judge who follows the law,” Obama said. “He’s shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions.”
Garland said judges must follow the law, not make it, and set aside personal views.
“People must be confident that a judge’s decisions are determined by the law and only the law. For a judge to be worthy of such trust, he or she must be faithful to the Constitution and to the statutes passed by the Congress,” Garland said. “Fidelity to the Constitution and the law has been the cornerstone of my professional life.”
The White House stressed that Garland has more federal judicial experience than any other Supreme Court nominee in history, having served 19 years on the D.C. Circuit Court, often considered the nation’s second-most important court. It pointed out that as a federal prosecutor, Garland led the investigation into and case against Oklahoma City bomber Timothy McVeigh, noting that he kept in touch with the victims and their families throughout the case and after.
Garland could hit the ground running with other justices — including Chief Justice John Roberts — who have known him for years.
Straight-horned markhor
If Garland succeeds in taking the seat of Justice Antonin Scalia, he might rival Scalia’s extraordinary — and at times colorful — writing style.
Take a case concerning an endangered species listed by the United States Fish and Wildlife Service.
Garland’s court remanded the case with instructions to dismiss it for lack of jurisdiction back in 2013 — but not before Garland had some fun.
“This appeal concerns the straight-horned markhor, an impressive subspecies of wild goat that inhabits an arid, mountainous region of Pakistan,” he wrote. ” As tempting as it may be to consider the arbitrary and capricious claim in a case involving a goat, an array of justiciability problems — mootness, ripeness and standing — require us to decline the opportunity.”
‘Safe choice’
Garland is a “quintessential safe choice” from Obama, said Steve Vladeck, a law professor at American University Washington College of Law and CNN contributor.
He’s known more for the cases he’s prosecuted than the decisions he’s handed down from the bench, Vladeck said. But as a judge, he has a reputation for centrism more than for any particular approach to judging or ideological commitments.
“He’s not flashy. He doesn’t have some academic theory driving his jurisprudence but decides the cases one at a time as they come before him,” Vladeck said. He “tends not to go out of his way to say anything beyond the minimum necessary to decide the case.”
It would be “simply impossible” for Senate Republicans to oppose Garland on the merits, Vladeck said.
“I’ve never met anyone with more integrity who was a straighter shooter than he was,” said University of Southern California law professor Sam Erman, who clerked for Garland. “He is very smart, careful and fair.”
Critics
In 2010, as the Senate looked to confirm a successor to Justice John Paul Stevens, Republican Sen. Orrin Hatch called Garland “a consensus nominee,” according to the White House. On Wednesday, however, Hatch said he feels the Senate should wait until next year to consider a candidate.
Even before his name was announced, Carrie Severino of the conservative Judicial Crisis Network cautioned in the National Review that he should not be labeled as “moderate,” arguing in one instance that he has a “very liberal view” of gun rights.
Also, the National Federation of Independent Business claimed that Garland “nearly always sides with regulators, labor unions and trial lawyers at the expense of small businesses,” which the group called “discouraging.”
