Garland: Well-liked but not confirmable

One month after Justice Antonin Scalia’s death, President Barack Obama announced his pick to replace the conservative icon on the U.S. Supreme Court: D.C. Circuit Court of Appeals Chief Judge Merrick Garland.

In announcing the nomination, Obama asked Senate Republicans not to make Garland a “political piñata” in an election year, but that looks like Garland’s destiny. Senate Republican leadership has vowed not to hold confirmation hearings or a vote on the nominee.

“This is the greatest honor of my life,” said Garland, standing in the White House Rose Garden next to the president. He choked up: “Other than Lynn [his wife] agreeing to marry me 28 years ago.”

Garland is unlikely to win confirmation, at least before November. If it weren’t Scalia but a liberal justice that Garland was nominated to replace, if the ideological control of the most powerful court in the country weren’t in the balance, and if it weren’t an election year, this nomination rollout might have looked different. This is the third justice Obama has had a chance to nominate to the nation’s highest court.

“I think highly of Judge Garland,” said Sen. Orrin Hatch, R-Utah, who has supported Garland in the past, calling him a “consensus candidate.” “But his nomination doesn’t in any way change current circumstances.”

Conservative legal scholars consider Garland one of the least bad options among Democrats’ potential nominees for the court. He would not be a conservative justice by any stretch, but he has not adopted distinctly activist liberal positions in his 19 years as a judge. He won the support of 32 Republicans in his confirmation to the D.C. Circuit in 1997.

But the D.C. Circuit deals largely with regulatory disputes, so he doesn’t have a record on abortion or same-sex marriage, for example. Obama quoted favorably from Hatch and current Chief Justice John Roberts, who served on the D.C. Circuit with Garland.

Ed Whelan, who clerked for Scalia and now serves as president of the Ethics and Public Policy Center, has expressed a “high regard” for Garland.

“[H]e’s as good a nominee as anyone President Obama might plausibly have selected,” Whelan wrote.“That said, I believe that Garland would move the court markedly to the left and that Senate Republicans should and must adhere to their position that no nominee should receive Senate consideration before the election.

“If Hillary Clinton or Bernie Sanders is elected president in November, the Senate could then proceed to act on the Garland nomination.”

Carrie Severino with the Judicial Crisis Network has criticized Garland’s role in a Second Amendment case, in which a D.C. Circuit panel struck down the district’s handgun ban. Garland voted for an en banc (full court) review of the decision. He did not have a chance to reveal his actual position on the case, but Severino interprets his motion for en banc review as a desire to reverse the panel decision.

“The president is committed to cementing five liberal votes on the court and the nomination of Judge Garland is just his next step in that plan,” Severino said in an email. “Judge Garland’s record shows a hostility to the Second Amendment, and it’s clear he would provide a reliable liberal vote on the court.”

But in 2010, Severino took a softer stance on Garland nomination: “[O]f those the president could nominate, we could do a lot worse than Merrick Garland.”

Next week, the Supreme Court will consider one case that came through Garland’s court: Priests for Life v. HHS, one of seven cases concerning Obamacare’s contraceptive and abortifacient mandate. A D.C. Circuit panel ruled against the nonprofit plaintiffs in that case and a majority of the circuit judges refused to hear the case en banc. The votes in that decision about an en banc hearing were not public, but several of the judges wrote for or against it. Garland did not sign on to either side, so it’s not clear what his position was.

One appeal to conservatives might be that Garland is 63, which limits his time on the court. The Supreme Court nominees of recent decades have been much younger. Chief Justice John Roberts and Justice Elena Kagan were 50 when they joined the court, and Justices Sonia Sotomayor and Samuel Alito were 55.

Garland is Jewish, the grandson of Eastern European immigrants who fled Jewish persecution, and grew up in Chicago. If he were confirmed, the court’s religious makeup would be four Jews and five Catholics. He has the Ivy League credentials of the other justices, having attended Harvard University and Harvard Law School. (In announcing the nomination, Obama noted Garland stocked shoes in a shoe store and sold his comic book collection to pay for school.) He clerked for liberal Justice William Brennan.

Garland served in private practice before working in President Bill Clinton’s Justice Department, where he was the lead prosecutor involved in the Oklahoma City bombing case. The Justice Department sought and won the death penalty for bomber Timothy McVeigh in that case. Garland has referred to that case as the most important work in his life. He also oversaw the prosecution of the Unabomber, Ted Kaczynski.

Tom Goldstein, a Supreme Court advocate and writer at SCOTUSblog, has described Garland as a nominee “from central casting.”