On Wednesday, President Obama nominated chief judge of the DC Court of Appeals Merrick B. Garland to the United States Supreme Court. The DC Circuit is generally considered a feeder school for the highest court in the land. If confirmed by the Senate, Garland will be the 113th justice to serve on the Court.
Judge Garland is “widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence,” stated the president at the Rose Garden ceremony. “These qualities and his long commitment to public service have earned him the respect and admiration from leaders from both sides of the aisle.”
However, Garland’s confirmation is set to be an uphill battle. Republican Senate majority leader Mitch McConnell has already announced that he will not proceed with the confirmation process.
“Rather than put Judge Garland through more unnecessary political routines orchestrated by the White House, the leader decided it would be more considerate of the nominee’s time to speak with him today by phone,” declared McConnell’s spokesman in a statement. “The leader reiterated his position that the American people will have a voice in this vacancy and that the Senate will appropriately revisit the matter when it considers the qualifications of the person the next president nominates. And since the Senate will not be acting on this nomination, he would not be holding a perfunctory meeting, but he wished Judge Garland well.”
Since the president’s announcement, there’s been a lot of speculation about exactly what kind of jurist Garland would be. Here are 5 things you need to know about Obama’s Supreme Court nominee:
1. He’s the “safe bet” for Obama, given Congressional opposition.
Harvard Law’s Noah Feldmen explains in Bloomberg View:
Merrick Garland is the safest possible pick for President Barack Obama. Extraordinarily well-qualified, moderate and often pro-prosecution, Garland has been considered a potential Supreme Court nominee almost since Bill Clinton put him on the U.S. Court of Appeals for the D.C. Circuit, in 1997. But if he isn’t confirmed, it isn’t a permanent loss for Democrats. Sri Srinivasan, his much younger near-clone, will still be waiting in the wings as a confirmable moderate Democratic back-up.
Among court-watchers, it’s long been understood that Garland needed unique circumstances to be nominated: the retiree had to be a white man, and the Senate had to be Republican. Otherwise, why would a Democratic president nominate a moderate white man?
2. He’s been described as a “moderate.”
According to The New York Times, Garland is a “centrist..who is highly regarded throughout Washington.” NPR calls him “a moderate but persuasive liberal..with a definite pro-prosecution bent in criminal cases.”
“Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia,” adds NPR.
Most sources indicate that Garland is more liberal when it comes to the environment and the executive branch’s national security apparatus. However, even Republicans have said good things of Garland. In fact, just last week Sen. Orrin Hatch (R-UT) explicitly stated: “[Obama] could easily name Merrick Garland, who is a fine man,” but “he probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”
Within legal circles, Garland is a highly respected jurist. Chief Justice John Roberts is quoted as saying, “Anytime Judge Garland disagrees, you know you’re in a difficult area.”
However, the judge’s views on most contentious social issues are a little bit unclear. “Garland has a lengthy record on the D.C. circuit court, but that court deals mainly with regulatory issues and not hot-button social issues of the day, such as abortion and gay rights,” explains NPR. “That has served as a confirmation advantage for previous nominees from the appeals court, and it likely will for Garland, too.”
Notably, Garland has worked under conservative and liberal judges, including Judge Henry Friendly of the Court of Appeals in New York and Justice William Brennan of the U.S. Supreme Court. He has enjoyed bipartisan support throughout his judicial career.
3. He has a judicial history of voting against individual gun rights.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.
4. He’s 63 years old. Age matters on the Supreme Court.
Judge Merrick Garland is 63 years old. Legal expert Noah Feldman provides a poignant, comprehensive analysis of the age factor:
In recent years, the conventional wisdom regarding Garland was that his age — he is now 63 — would work against him. Sri Srinivasan, also on the D.C. Circuit, is just as smart as the whip-smart Garland, is only 49, and is South Asian and Hindu to boot, offering a touch of diversity. (Garland is white and Jewish; his almost too WASP-y name is the giveaway clue.)
Now Garland’s age turns out to be a plus, in at least two ways. First of all, it serves as a temptation and incentive for the Republican Senate to confirm him. If the Republicans don’t confirm him, they run the risk that a Democratic president, probably Hillary Clinton, would nominate someone younger, thus consolidating Democratic-nominee leadership on the court for a longer time into the future.
Garland’s age also serves as an advantage because, to put it bluntly, he’s expendable. Assume Mitch McConnell and the Senate stay with their initial promise to block any nominee. Assume, further, that Obama’s nominee becomes a by-word for a national controversy. Such a nominee might have no chance of being confirmed by a future Senate — and would therefore be rendered unappointable by a future Democrat. The current nominee would therefore be a sacrificial lamb.
If Obama had chosen Srinivasan, that would come at a real cost to the Democrats, because it would potentially eliminate a highly confirmable moderate on a permanent basis. Because Garland is 63, the loss isn’t as great. His nomination was always being saved for a rainy day. And now it’s raining.
5. He’s brilliant by all accounts.
Ideology aside, there’s no denying that Garland is a “brilliant legal mind.” “Garland has had an extraordinarily distinguished legal career, following the American legal version of what the Romans called the cursus honorum, the course of offices that led to higher and higher professional prominence,” notes Feldmen.
A native of Chicago, Garland came humble beginnings. His mother worked in volunteering services, while his father ran an independent business out of the family’s basement. Garland ultimately graduated as valedictorian of his high school. He then went on to Harvard on a scholarship, graduating first in his class with a degree in social studies. After that it was Harvard Law. There, he served as the Law Review’s articles editor. Garland again graduated with the highest honors from law school, earning a JD magna cum laude.
“He is acknowledged by all to be brilliant,” notes SCOTUSblog.