On March 16, President Obama nominated Chief Judge Merrick Garland of the D.C. Circuit Court of Appeals to fill the vacant seat on the US Supreme Court. His background and record, and the bipartisan acclaim he has previously received, make clear that he is an extremely well qualified jurist who would ably serve as a Supreme Court justice, and that there is absolutely no basis but pure politics for the refusal of most Republican senators to even consider his nomination.
Garland, 63, was born in Chicago. His father ran a small advertising firm out of the family’s home and his mother coordinated volunteer services for Chicago’s Council for Jewish Elderly. His grandparents were refugees from anti-semitism in Russia. After graduating with honors from Harvard College and Law School, Garland went on to clerk for appellate court judge Henry Friendly and noted Supreme Court Justice William Brennan. He then worked briefly as special assistant to Attorney General Benjamin Civiletti during the Carter Administration and then as an associate and a partner at the Washington law firm of Arnold & Porter, where he specialized in corporate litigation. In 1989 he became an Assistant US Attorney in Washington and, after a brief return to Arnold & Porter, joined the Clinton Administration as deputy assistant attorney general in the criminal division of the Justice Department and then as principal assistant deputy attorney general. In that capacity, he supervised the investigation and prosecution of a number of key domestic terrorism cases, including the Oklahoma City bombing and the Unabomber case.
Garland became a judge on the DC Circuit Court of Appeals in 1997, winning bipartisan praise from lawyers, judges, and senators ranging from Edward Kennedy to Orrin Hatch. During most of the 19 years he has been on the bench, Garland has also tutored poor children at a DC elementary school. He became chief judge in 2013.
Garland has continued to win bipartisan and both liberal and conservative praise during his service on the court of appeals. Most of his opinions are for unanimous three-judge panels, bringing together both conservative and liberal judges. As now-Chief Justice Roberts has commented, however, when Judge Garland disagrees with you as a judge, “you know you’re in a difficult area.” (In the particular case Roberts was referring to, Garland dissented from a ruling by Roberts that limited the ability of whistleblowers to bring lawsuits to vindicate fraud against the government.) Garland is a clear and careful writer, who is appropriately deferential to Congressional statutes, agency rules, and past precedent. Although he has a reputation for tending to favor the government in criminal law and terrorism cases, he has not hesitated to rule against the government where it oversteps its authority in such matters. For example, he ruled in one case (In re Sealed Case) that a lower court made a mistake and had to order the prosecution to look for and disclose to a defendant any evidence that would tend to show innocence. In another (Parhart v Gates), he ruled that the Combatant Status Review tribunal had improperly relied on hearsay evidence to indefinitely detain someone as an enemy combatant. He has a generally positive record in such areas as labor law, environmental law, and individual civil rights. Overall, Garland has more federal court experience than any Supreme Court nominee in history.
Despite Judge Garland’s stellar record, Republican leadership has continued to insist that his nomination should not be considered, reviewed, and voted on at all by the Senate, with Republican Majority Leader McConnell refusing even to meet with Judge Garland. Even conservative columnist George Will has recognized that the only reason for this obstuctionist blockade is political, with the hope that a Republican president elected in November (Donald Trump?) will be able to fill the vacancy. Despite claims to the contrary, Democrats have not stooped to such political gamesmanship, as is best shown by their decision to confirm Reagan Supreme Court nominee Anthony Kennedy when they controlled the Senate in presidential election year 1988. No, Judge Garland won’t be the far-right conservative that Republicans hope to get from a President Trump or Cruz, but that is simply no reason for Republican senators to refuse to do their job and at least act on the nomination. Cracks have already begun to appear in the Republican blockade, with Sen. Mark Kirk stating that Garland should receive a hearing and a vote. With continued pressure from Americans across the country, Judge Garland will hopefully receive the hearing and the vote that the Senate owes to him, the Supreme Court, the Constitution, and the American people.