Merrick Garland
Larry H. Bernstein, MD, FCAP, Curator
LPBI
Polar bears, Princess Diana, gun rights: The opinions of Obama’s Supreme Court nominee, Merrick Garland
The Conversation https://theconversation.com/polar-bears-princess-diana-gun-rights-the-opinions-of-obamas-supreme-court-nominee-merrick-garland-56398
Merrick Garland, President Obama’s pick for the Supreme Court, has become the subject of enormous controversy, pitting politics against history and dueling readings of the Constitution.
But if Senate Judiciary Committee did interview him, what would they ask? We examined a selection of his 334 opinions written for the Court of Appeals for the D.C. Circuit to find out.
Judicial personality
A review of his opinions reveals a moderate, thoughtful judge with an abundance of common sense and a ready sympathy for endangered species like polar bears and arroyo toads.
Judge Garland’s opinions are models of painstaking legal analysis. He is courteous to dissenting judges – you won’t be hearing from him that an opposing view is “pure applesauce,” as Justice Scalia memorably wrote.
He has authored few dissents himself, but when he has, they have been notable. When the court barred a suit by Iraqi citizens who claimed to have been tortured by private military contractors in Abu Ghraib prison, Garland dissented. In a meticulous, 38-page opinion, he demonstrated that “no act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors.” But he did not have a single harsh word for the majority. “My colleagues reach a different disposition than I do under the combatant activities exception because they employ a different test,” he wrote.
Missing from the record
Judge Garland does not appear to have written court opinions about abortion, affirmative action, same sex marriage, 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 2007 decision striking down Washington DC’s gun control law re-heard by the full Circuit. This doesn’t tell us much, as his vote to rehear was issued without an opinion, and joined by one of his conservative colleagues as well as a liberal one. But it was duly noted by the National Review, and will most likely be taken as a sign of unfriendliness towards the gun lobby.
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 does not amount to unlawful discrimination.
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.
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, the Supreme Court ruled in Citizens United that political spending is a form of protected speech under the First Amendment. Soon after, Judge Garland joined in a unanimous decision by the DC Circuit that allowed unlimited donations by individuals to “Super PACs,” the nominally independent groups that support political candidates.
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, throwing in a reference to Lewis Carroll’s 1876 poem The Hunting of the Snark for good measure: “Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make an allegation true.”
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.
Friend to polar bears and toads
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 an opinion upholding the Fish and Wildlife Service’s determination that “due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future.”
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 did not conduct 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.
Merrick Garland’s long service makes him a well-vetted candidate for U.S. Supreme Court
Why we have the most polarized Supreme Court in history
Professor of Political Science, Stony Brook University (The State University of New York)
The unexpected passing of Justice Antonin Scalia has had and will have enormous ramifications across the American polity.
Prior to his passing on February 13, hardly a word was mentioned about the Supreme Court in any of the presidential debates. In contrast, subsequent debates mentioned the words “court” or “justice” more than 20 times.
And barely an hour after Scalia’s passing, Senate Majority Leader Mitch McConnell declared that no replacement should be named until after the 2016 election.
As to the court itself, the impacts of Scalia’s passing could be significant, including a reprieve for affirmative action (Fisher v. Texas), an inability to prohibit mandatory union dues by public employees (Friedrichs v. California Teachers’ Association) and greater leeway under the Second Amendment to regulate guns (Voisine v. United States).
In fact, if a Democratic president gets to appoint the next justice, the doctrine that the Second Amendment provides an individual right to bear arms, and not just a right of state militias (United States v. Heller), could fall, as could the doctrine that campaign contributions by individuals and corporations are a form of speech protected by the First Amendment.
My confidence in this assertion is based on the fact that in recent times, unlike any time in our history, we are unlikely to see conservative Democrats or liberal Republicans on the Supreme Court.
That’s because the Supreme Court is more polarized politically than it’s ever been. If historical trends continue, the next Supreme Court justice will not be a moderate, but a person with strong ideological views.
Different times
For the first time in the Supreme Court’s history, every Republican on the court is to the right of every Democrat, as measured by the Martin-Quinn score.
I submit that at least part of the reason for this polarization on the court is the polarization in the Senate.
Because justices are nominated by the president and confirmed by the Senate, the impact of party on the choice of justices should roughly reflect the amount of partisan division at the time of the justices’ appointment. And indeed, we have seen this in decades past.
For example, the 94th Senate confirmed John Paul Stevens, a liberal Republican, at a time when there were many liberal Republicans in the Senate, such as Jacob Javits (New York) and Edward Brooke (Massachusetts).
Similarly, the 92nd Senate confirmed Lewis Powell, a conservative Democrat, at a time when conservative Democrats such as John Stennis and James Eastland (both Mississippi) were fairly common.
Given growing party polarization in Congress over the last 30 years, we should also expect a relatively tighter fit between party and voting behavior on the court in 2010 than we would find in 1994. But has that actually been the case?
Spreading partisanship
Consider the following evidence. I start by examining the overlap between partisanship in the 98th Senate (1983-84) and the justices serving 10 years later – that is, the 1994 term of the court. With new appointments every few years a polarized Senate would not have an immediate effect on the court, but over time the impact would grow.
As the graph below shows, there was a fair amount of overlap in partisanship in the 98th Senate as represented by ideal points, a common way to measure political leanings.
Figure 1: Ideal points (liberal to conservative) by party 98th Senate with Republican senators in black, Democratic senators in white.
Ten years later, we find, based on commonly used ideology scores of the justices, Republican Justice John Paul Stevens to be the most liberal member of the court, while Republican Justice David Souter falls to the left of Democratic Justice Stephen Breyer.
Figure 2. Ideal points (liberal to conservative) of the justices by party, 1994 term. Legend: nominees by Republican presidents in CAPS. Andrew Martin and Kevin Quinn
Then I look at the partisanship in the 107th Senate (2001-03) and the justices serving on the 2010-11 term. By the 107th Senate, we observe far less overlap between Republicans and Democrats.
Ideal points (liberal to conservative) by party, 107th Senate with Republican senators in black, Democratic senators in white.
The increasing homogeneity of the Republican Party since the 1980s, combined with the battle cry “No More Souters,” should make it increasingly difficult for a Republican president to nominate a Supreme Court justice who overlaps ideologically with Democratic justices.
Has this happened? While Harriet Miers’ lack of qualifications no doubt hurt her chances for confirmation, her failure was certainly aided and abetted by conservatives who were not certain about her ideological purity, given her ambiguous statements about abortion rights as well as her past political contributions to Democrats Albert Gore and Lloyd Bentsen. In fact, conservative commentator Charles Krauthammer laid out her eventual exit strategy. (She eventually withdrew her nomination.)
To a lesser extent, liberal Democrats vocally expressed some dissatisfaction that President Obama’s choice to replace Justice Stevens, Elena Kagan, was not sufficiently liberal. While Democrats had no intention of voting against Kagan, the carping about her nomination was certainly a signal from liberal Democrats to President Obama to resist further movement toward the political center in future nominations.
The make-up of today’s court does indeed reflect a partisan legislature. Ten years after the 107th Senate, and given Justice Stevens’ retirement, we no longer observe any overlap between Republicans and Democrats on the court, as seen in the chart below. The five Republicans on the court (in CAPS) place above the four Democrats.
Ideal points (liberal to conservative) of the justices, 2010 term, with nominees by Republican presidents in CAPS. Andrew Martin and Kevin Quinn, Author provided
To be sure, this complete segregation by party exists only because of the retirement of Justice Stevens in 2010. But Justice Stevens, from the moderate wing of the Republican Party, was appointed at a time when there were many moderates and even some liberals in the Republican Party.
My model of course cannot predict how long partisan-ideological aberrations such as Stevens will remain on the court. But as long as the partisan-ideological stance of the Senate remains, the Supreme Court will continue, with a certain time lag, to gain justices on either ends of the partisan spectrum.
Merrick Garland’s long service makes him a well-vetted candidate for U.S. Supreme Court
Reporter: Aviva Lev-Ari, PhD, RN
| Jonathan Ernst / Reuters |
| Supreme Court nominee’s dissents are an exercise in restraint |
| Judge Merrick Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom and more open than some of his colleagues to a broader definition of what constitutes criminal behavior. |
| By Robert Barnes |
Before Merrick Garland was announced as President Obama’s nominee to the Supreme Court, he was a prosecutor and the linchpin in the 1995 Oklahoma City bombing investigation and ultimate convictions of Timothy McVeigh and Terry Nichols. Here’s a look at some of Merrick Garland’s high profile work on the Oklahoma City bombing investigation.
[Garland’s instinct for the middle could put him in court’s most influential spot]
To get a real feel for a judge, a theory goes, look not at the majority opinions he writes, which must encompass the views of others, but when he writes for himself in dissent.
Dissents allow a judge his own voice and the chance to deliver an unvarnished verdict on the law — to call out the “legalistic argle-bargle” of hopelessly misguided colleagues the way Justice Antonin Scalia did, or advise Congress to cure a particularly unwise ruling, as Justice Ruth Bader Ginsburg has done. Judge Merrick Garland respectfully disagrees.
Moreover, he has written remarkably few — less than one a year during his nearly two decades on the U.S. Court of Appeals for the District of Columbia Circuit, and apparently none since becoming chief judge in 2013.
“I think he always sounds the same,” said Aaron L. Nielson, a law professor at Brigham Young University who closely follows the decisions of the D.C. Circuit. “Most of the time, he is very even-toned, not aggressive.”
A representative sample:
“Reasonable minds can differ about what is reasonable, and I certainly understand my colleagues’ reservations,” Garland wrote in Northeast Beverage Corp. v. National Labor Relations Board in 2009. “But I am unable to conclude that the Board’s application of Section 7 to the facts of this case was unreasonable.”
Perhaps his feistiest exchange with a colleague was in a disagreement with a man with whom he aspires to argue once again — Chief Justice John G. Roberts Jr. Then a D.C. Circuit colleague, Roberts wrote a majority opinion about the False Claims Act that drew Garland’s ire.
“That was a little bit — fiery, isn’t the right adjective — engaged,” said Nielson, who clerked for another judge on the D.C. Circuit and later for Justice Samuel A. Alito Jr.
In general, Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom, more open than some of his colleagues to a broader definition of what constitutes criminal behavior.
The dissents affirm his position on the court’s left — he most often disagrees when one of the court’s conservatives is writing the majority opinion. The exception is on law-and-order cases, where he has parted ways with liberal colleagues who have overturned convictions. That position seems in line with his former role as a federal prosecutor.
In Valdes v. United States, the full circuit court in 2007 overturned the conviction of Nelson Valdes, a detective for the D.C. police department. Valdes was the target of a sting operation in which he was paid in cash to search police databases to supply otherwise publicly available information.
The majority of the judges said the actions did not constitute an “official act” to which the bribery statute applied.
“A guy walks into a bar,” Garland’s dissent begins, referring to the shady aspects of the agent’s solicitation of Valdes.
The bottom line, Garland concluded: “A jury convicted the detective of accepting an illegal gratuity — to put it bluntly, a ‘payoff.’ Today, the court reverses the conviction on the ground that accepting such a gratuity does not constitute a crime. Because the court’s decision is wrong, and because it undermines the prosecution of public corruption, I respectfully dissent.”
His disagreement with Roberts was over whether former Amtrak employee Edward Totten could go forward with a whistleblower claim that two companies had delivered defective rail cars to the railway.
The False Claims Act is the government’s primary litigation tool in guarding against fraud. But Roberts and another judge on the panel said that the language of the act covers only bills presented to the government, and Amtrak is not the government.
Garland countered that the government gave Amtrak the money that paid for the railcars. Such a tight reading of the statute would leave vast sums of government money unprotected, he said.
The two dueled, in the language of lawyers.
Roberts: “The dissent literally begins and ends with legislative history. We will end as we began, too, but with the statutory language.”
Garland: “The court counters the payment to the defendants was not a payment ‘by the government’ since Amtrak — a government grantee rather than the government itself — wrote the check. The implications of the court’s argument are breathtaking.”
The two even sparred over which side the “inestimable” Judge Henry J. Friendly, a famous circuit judge for whom both clerked, would take.
“In Judge Friendly’s view, this court would do ‘pretty well to read the statute to mean’ what Congress said it meant,” Garland wrote.
Interestingly, Roberts’s decision was sharply questioned at his Supreme Court confirmation hearing in 2005 by Sen. Charles E. Grassley (R-Iowa), who is now chairman of the Senate Judiciary Committee and taking a hard stand against allowing a hearing for Garland.
“I’m happy to concede that it was among the more difficult cases I’ve had over the past two years,” Roberts told Grassley. “Any time Judge Garland disagrees, you know you’re in a difficult area. And the function of his dissent, to make us focus on what we were deciding and to make sure that we felt we were doing the right thing, I think was well-served.”
In 2005, Garland objected when the full court reviewed a three-judge panel’s decision that reporters must divulge their sources in a privacy lawsuit filed by nuclear scientist Wen Ho Lee, who alleged that federal agencies leaked defamatory information about him.
“Unless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to disclose any confidential information to reporters,” Garland wrote, referencing earlier court decisions. “And if our case law has that consequence, it will undermine the Founders’ intention to protect the press so that it could bare the secrets of government and inform the people.”
As Obama pointed out when he introduced Garland to the nation Wednesday, the D.C. Circuit is often referred to as the nation’s second-highest court because it deals with important questions about government, campaign-finance law and regulations. The audience for its decisions is composed of government officials, lawyers and other judges.
He objected to the “breadth of the protective cloak [the court] has cast over the activities of private contractors.”
Alice Crites contributed to this report. Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
http://www.nytimes.com/2016/03/19/us/politics/merrick-garland-supreme-court-senate-recess.html
http://www.nytimes.com/2016/03/18/us/politics/obama-supreme-court-senate.html
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