This week President Barack Obama nominated Merrick B. Garland to be the 113th Supreme Court justice to fill the vacancy created by the untimely death of long serving conservative Justice Antonin Scalia in February. Judge Garland, is a former prosecutor who has served on the Court of Appeals for the District of Columbia Circuit since 1997 and as the Court’s chief judge since 2013. Garland, who is 63, would be the oldest justice confirmed since Lewis Powell in 1971. The selection of Judge Garland, who has been described as a centrist, is the Obama Administration’s effort to put forward a candidate who is acceptable to both the left and the right factions of congress. The nomination actually marks the third time that President Obama has considered Judge Garland for a Supreme Court vacancy. Garland was under consideration for both Justice John Paul Stevens’s and Justice David Souter’s positions on the court which were ultimately respectfully filled by Elena Kagan and Sonia Sotomayor. In nominating Garland, President Obama is trying to exert pressure on Republican Senate Majority Leader Mitch McConnell to roll back his declaration that he would block consideration of any nominee until the next president is chosen. Obama’s strategy is to paint the Republicans as being unreasonable and tethered to ideology if they refuse to consider a moderate with a centrist record and impeccable reputation.
It is no surprise that in endeavoring to placate both the right and the left with his Supreme Court nomination, President Obama did not succeed in pleasing everyone. Charles Chamberlain, the executive director of the left leaning organization Democracy in America, said that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court, and instead put forward a nominee designed to appease intransigent Republicans.” Garland, a white male of Jewish faith who graduated from Harvard, is not a barrier-breaker. President Obama’s short list had included nominees who fulfilled the racial diversity criteria, including Sri Srinivasan of Indian descent and Paul Watford, an African-American who is considered to be more liberal than Judge Garland.
As expected, Majority Leader McConnell dug in his heels, stating that “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration…. The President may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.” Some conservative groups have also come out in opposition to Garland’s nomination including Brian Rogers of the conservative group America Rising who has criticized the judge’s limited votes on gun control and “remarkable record of deference” to federal regulators. Garland has also demonstrated liberal leanings through other measures. An analysis of his former law clerks revealed 33 who went on to clerk for liberal Supreme Court justices and only 11 for conservative justices.
However, several Republicans have communicated that they are willing to meet with Judge Garland including Senator Charles Grassley (Iowa-R), the Chairman of the Judiciary Committee, Senator Mark Kirk (R-Illinois), Senator Kelly Ayotte (R-New Hampshire), Senator Susan Collins (R-Maine) and Senator Jeff Flake (R-Arizona). Senator Orrin Hatch (Utah) who was a strong supporter of Garland’s when his name was suggested in the past has described Garland as “the “consensus nominee”. While Hatch has stated that he would be willing to consider nominating Garland in the lame duck session, he added a caveat “He (Garland) is a good man, but he shouldn’t be brought up in this toxic environment,” Hatch commented. “I am tired of the Supreme Court being used as a battering ball back and forth on both sides. That is why I’d put it off till next year.”
Some judicial scholars think that Merrick may be an ideal choice for the current court. In his article The Nomination of Merrick Garland Is a Victory for Judicial Restraint in The Atlantic, Jeffrey Rosen mentioned that Garland’s resume includes clerking for the conservative judge Henry Friendly and the long serving liberal Supreme Court Justice William Brennan. Those who know Garland describe him as having the reverential jurisprudence of Friendly instead of the activist jurisprudence of Brennan. According to Rosen, like Henry Friendly “Garland is a judge who enforces rights enumerated in the Constitution while generally deferring to legislatures, agencies, and elected officials when the Constitution doesn’t speak clearly. He recognizes, as Justice Oliver Wendell Holmes Jr. put it, that the Constitution “is made for people of fundamentally differing views.” That’s why there’s no nominee better suited to bring the Court and the country together in these polarized times. “
However, David Savage in his article in The LA Times Supreme Court nominee Merrick Garland has a record of restraint, not activism, underscores the point that even if Garland is the most moderate nominee to come out of the Obama administration, his appointment “would create the first liberal majority on the Supreme Court in more than 40 years.” Garland having been described as being “deferential to regulatory agencies” shows that is not likely to engage in judicial activism. On the other hand, given that the Supreme Court’s conservatives have been trying to reign in the federal government’s regulatory activity on issues including immigration and environment, if Garland is appointed, this movement will probably come to a grinding halt. Furthermore, just before his death Scalia joined a 5-4 ruling where he sided with coal producing states and put the Clean Power Plan rules on rule while the DC Circuit court plays out the legal challenge. Garland’s past rulings show that he would be likely to vote to uphold the regulations. If confirmed, Garland will also have to rule on the high profile immigration case out of Texas which concerns whether President Obama has the authority to temporarily suspend deportation and offer work permits to several million illegal immigrants.
Garland also played a role in Justice Scalia’s landmark opinion District of Columbia vs. Heller, which declared, for the first time, that the 2nd Amendment protected an individual’s right to have a gun at home for self-defense. It struck down an unusually strict D.C. gun control ordinance. Prior to that time, the court’s rulings had found that the amendment’s protections related to a “well-regulated militia.” In 2007, Garland voted “to have the full D.C. appeals court reconsider the issue after one of its panels, by a 2-1 vote, struck down the D.C. ordinance as a violation of the 2nd Amendment, marking the first time a federal appeals court had declared an individual right to bear arms based on those constitutional grounds.” Garland never explained why he wanted the full appellate court to review the case. If the Senate conducts a hearing on his nomination, he will be asked to explain his views on gun control.
On the other hand, Garland’s history has demonstrated a willingness to look at cases from a bipartisan lens For instance in 2003, he sided with the Bush Administration in a ruling which blocked Guantanamo Bay detainees from challenging their detention in civil courts. Garland is also expected to have a more right leaning perspective on cases involving terrorism and national security given his past his past history. Garland was a prosecutor and Justice Department attorney at the time of the Oklahoma City bombing and the arrest of Theodore Kaczynski.
While congress may still be divided about whether or not to move forward with the Merrick Garland nomination during the Obama Administration, the American people seem to be comfortable with selecting a nominee during the lame duck session. According to a recent NBC News Survey Monkey Supreme Court Nomination Poll conducted online from March 17- March 18 among 1,838 adults, 61% of those surveyed believe that congress should vote now on the Supreme Court nominee and 36% believe that the vote should be delayed until the next president is in office.
Is Garland moderate enough to appease the right and the left? Will enough pressure be imposed to get Mitch McConnell to agree to a nomination during the Obama administration or will the process be delayed until the next president is in office? This all remains to be seen.
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