What kind of judge is Supreme Court nominee Merrick Garland?

By Caren Morrison
Georgia State University

On March 16, President Obama announced his pick for the Supreme Court vacancy left by the death of Justice Antonin Scalia: Merrick Garland, chief judge of the Court of Appeals for the DC Circuit.

The President described Garland as not only “one of America’s sharpest legal minds,” but also “someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence.”

Chief Judge for the past three years, Garland was confirmed by a bipartisan vote to the D.C. Circuit in 1997. He even received the support of several prominent Republicans, including Sen. Orrin Hatch.

But that was then.

Now, both sides of the political spectrum are mobilizing their supporters for what promises to be a brutal slog – and that’s just to determine whether the Senate should act on the nomination.

In the meantime, we might as well get to know the jurist they’re fighting over.

Judicial philosophy

Having been on the bench for so long, Garland has written over 300 opinions, and joined many more. So court watchers will be kept busy trying to unpack his judicial philosophy.

Based on an initial review of his body of work, Garland appears to deserve his label of “moderate.” His opinions are careful and meticulous. He is courteous to dissenting judges, and has authored few dissents himself.

Because of his background as a prosecutor – most notably on the Oklahoma City bomber case – he is seen as fair, but not overly liberal in criminal cases.

Judge Garland does not appear to have written court opinions about abortion, affirmative action, or the death penalty. Much of this is due to the caseload in the DC Circuit, which is heavier on agency action, federal regulations, and the like.

He has not directly taken part in cases dealing with gun control, although he voted to have a decision striking down Washington DC’s gun control law re-heard by the full Circuit. This vote was duly noted by the National Review, and will most likely be taken as a sign of unfriendliness towards the gun lobby.

But most of Judge Garland’s opinions don’t seem terribly controversial. He usually takes a sensible approach, like ruling that the State Department can’t fire someone for turning 65 just because they’re working abroad, or that requiring an employee to make up time spent in aerobics class doesn’t mean she was being unlawfully discriminated against.

And unlike the colorful, vituperative language of Justice Scalia, Garland’s sense of humor is best described as dry.

Campaign finance and free speech

Campaign finance reform remains a hotly contested topic that is likely to result in a lot of scrutiny.

In 2010, in a case called Citizens United, the Supreme Court ruled that political spending is a form of protected speech under the First Amendment. Therefore, the government could not keep corporations or unions from spending money to support or attack individual candidates – typically through ads.

Soon after, Judge Garland joined in an decision by the DC Circuit that struck down a provision of the Federal Election Campaign Act limiting contributions by individuals to political committees that made “independent expenditures” – in other words, spending money to influence voters without coordinating with specific candidates or political parties. After Citizens United, the DC Circuit found the application of the law to be “straightforward.”

But this past summer, a group of contractors challenged a provision of the Federal Election Campaign Act that barred individuals and firms from making federal campaign contributions while they negotiated or performed federal contracts.

Judge Garland distinguished this ban from the situation in Citizens United. The contribution ban only operated during the period of contract negotiation and performance, the very time that the risk of corruption was at its height. This risk wasn’t speculative either, he wrote:

in the case of contracting, there is a very specific quo for which the contribution may serve as the quid: the grant or retention of the contract.”

Garland, joined by every other judge on the Circuit, upheld the restriction.

Guantanamo detainees

Judge Garland ruled on several cases brought by Guantanamo detainees, including Shawali Khan, Mashour Alsabri, and Moath Al Alwi. In all three cases, Garland agreed with the lower court that there was reliable evidence that the detainees were associated with either al Quaeda or the Taliban. Under the Authorization for the Use of Military Force, he ruled, so long as it is more likely than not that an individual is part of the Taliban or al Quaeda, their detention is legal.

But even though the standard is low, Garland at least required that it be met. Faced with a lack of reliable evidence in Parhat v. Gates, he took a much stricter approach. Hufaiza Parhat, an Uighur, a persecuted Muslim ethnic minority in China, challenged his designation as an enemy combatant.

“It is undisputed,” wrote Judge Garland, “that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies.” The Combatant Status Review Tribunal had nevertheless designated Parhat an enemy combatant on extremely attenuated evidence.

Setting aside his usually measured tone, Garland noted that the government had argued that the allegations that Parhat was an enemy combatant were reliable because they were made in at least three different documents.

“We are not persuaded,” retorted Garland. “Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true.” He was referring to Lewis Carroll’s The Hunting of the Snark from 1876.

Garland had even less patience with the government argument that the State and Defense Departments would not have put the enemy combatant allegations in intelligence documents if they weren’t reliable. He wrote:

This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.

He ordered Parhat released, and in 2011, Parhat and three other Uighurs were sent to Bermuda.

FOIA requests

One issue that frequently comes up in the DC Circuit is how the government should respond to requests under the Freedom of Information Act.

Judge Garland ruled against the CIA when the American Civil Liberties Union sued to obtain records relating to the use of drones to carry out targeted killings. In classic Bourne Identity style, the CIA had refused to confirm or deny the existence of any such records. Given the fact that the President had already acknowledged the use of drone strikes in Pakistan and Afghanistan, Judge Garland was unimpressed by the CIA’s arguments. “It is neither logical nor plausible to maintain that the Agency does not have any documents about drone strikes,” he wrote.

He also had a case involving the death of Princess Diana and her boyfriend, Dodi Al-Fayed, in a car crash in Paris in 1997. Al-Fayed’s father had made a FOIA request for documents from the CIA, claiming that the NSA had recorded the Princess’ telephone conversations and that MI6, Britain’s spy agency, might have been involved in the deaths. But the case was just about getting his FOIA request expedited. Judge Garland found that he had not demonstrated a “compelling need” for faster service.

Is the judge a secret polar bear lover?

Judge Garland does have a fairly strong record of support for environmental regulations.

He upheld a move by the EPA to eliminate a loophole that let some homeowners do renovations without worrying about lead paint dust.

He joined (though did not author) an opinion finding that a federal rule listing polar bears as a threatened species under the Endangered Species Act was not arbitrary and capricious. And he upheld a ruling against a real estate development company whose proposed housing project would destroy the habitat of the arroyo toad.

When the developers tried to argue that the toads themselves were not an economic activity and so could not be regulated, Judge Garland set them straight:

The regulated activity is Rancho Viejo’s planned commercial development, not the arroyo toad that it threatens. The Endangered Species Act does not purport to tell toads what they may or may not do.

Finally, Garland voted to uphold EPA regulations of power plant emissions to limit the dispersion of mercury and other toxins. This decision was by reversed by the Supreme Court last June, on the grounds that the EPA hadn’t considered the costs to the utilities.

The opinion’s author? Justice Scalia.


Caren Morrison, Associate Professor of Law, Georgia State University.

This article was originally published on The Conversation.The Conversation

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