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Yesterday morning, President Obama announced his nomination of Merrick B. Garland to fill the vacant Supreme Court seat. The result of his announcement was consternation in the GOP, confusion among a lot of the public, and a whole lot of pontificating. He's not particularly well-known outside of circles that spend a lot of time following judicial matters, and he wasn't one of the high-profile names being bandied about, like Sri Srinivasan, for the role.
So who is Merrick Garland, and should you be excited about his nomination? The short answer is: Garland is currently the Chief Judge on the U.S. Court of Appeals in D.C., and well, probably not so much, but you could do a lot worse. (But the edit history on his Wikipedia page is a real hoot right now.)
Born in 1952, Garland attended Harvard for both undergraduate and law school, ultimately graduating magna cum laude. He clerked for judges on the Second Circuit of the U.S. Court of Appeals as well as the Supreme Court before entering private practice, in addition to serving the DOJ as a prosecutor (where he was involved in the Oklahoma City Bombing case, which was brought up highly prominently in Obama's announcement as evidence of his bona fides). He took his current position in 1997, after bipartisan support during his confirmation hearings, and was actually previously considered as a Supreme Court appointee by President Obama — during which time current nomination opponent Orrin Hatch vowed to push his the process through.
Mitch McConnell, currently having a prolonged snit on Twitter, had this to say:
Of course, Americans already had their say — in 2012, when they elected President Barack Obama to a second term, which ends on January 20, 2017, not March 16, 2016.
As the president promised repeatedly in his very naked challenges to GOP threats that they would refuse to even hold hearings for, let alone confirm, an Obama nomination, he is an extremely qualified nominee. He has ample judicial experience, and let's not forget that Republicans loved him in the 1990s. Like, a lot. Of note: Two of the Republicans who thought he was supercool during his previous confirmation hearings are on the Senate Judiciary Committee, which unanimously indicated that it would not be holding any hearings. AWKWARD.
"If you don't [do your job]," the president commented, "then it will not only be an abdication of the Senate's constitutional duty. It will indicate a process for nominating and confirming judges that is beyond repair."
His record, generally speaking, is moderate, though he's prone to the occasional spark of dry wit, a not uncommon phenomenon among Supreme Court judges. The American Bar Association considers him "well qualified," which is more than they said for Justice Scalia.
While a judicial litmus test is not the best way to pick, let alone confirm, a Supreme Court candidate, it is reasonable to be aware that personal biases inevitably influence judicial decisions, regardless as to stated intent to interpret cases fairly under the law. Certainly Judge Garland has a reputation for stating and restating that he's only concerned with the law, not the social issues behind given cases. Here arises some of the problems with Garland, though, as when it comes to some extremely contentious issues, including cases facing the current court, his positions aren't well known. NARAL Pro-Choice America President Ilyse Hogue commented that his position on abortion rights isn't known, for example, and similarly, we don't know much about his opinion of the death penalty.
He's made conservative rulings in the past, such as depriving Guantanamo detainees of relief in U.S. courts. The New York Times, however, argues that he could shift the balance of the court in a liberal direction, putting him to the left of Justices Kagan and Breyer, but to the right of wildcats Ginsberg and Sotomayor. He's certainly ruled in a liberal direction on the subjects of environmentalism, gun rights, and some criminal rights, and the National Review dislikes him, which may be a point for or against him depending on your political leanings.
It's also worth noting that Garland's history as a prosecutor has definitely influenced his role on the bench, with a tendency to support law enforcement (though not a uniform tendency). This is a particular worry with respect to privacy rights, which are a growing issue in the United States, especially in light of the fact that the president has condoned and sometimes actively supported restrictions on the exercise of the right to privacy. The Supreme Court needs a balance more committed to privacy, and this should be a huge concern — the ongoing battle between the FBI and Apple is a profound illustration of why we need to pay attention to this issue.
Two things are clear about Garland: He's definitely qualified, judicially, to serve on the Supreme Court. He is also very clearly a compromise pick, driven by the very legitimate concern that the Senate will fight any nomination tooth and nail, and a minimally controversial pick will show the Senate up in a way that a more liberal one will not — Justice Socialist McAbortion would never fly, so it's not worth bothering, and Democrats would be furious if Obama nominated Justice TeaParty McTrumpFan. Yet, there's actually a case to be made for both hypothetical justices, because a robust and diverse court is a better court.
Packing the court with moderates, even very skilled, thoughtful ones, is less likely to produce important, groundbreaking decisions that will shape American jurisprudence for centuries to come, as they will be more likely to err on the side of cautious legal interpretation. Conversely, of course, it also means that the court can't engage in wildly out of bounds judgments, including the strict literalism that Justice Scalia so enthusiastically endorsed. Unfortunately, given the divisive state of current politics, that's pretty much what we're stuck with, because this isn't a West Wing episode. (Props to the person who can name the episode I'm referencing, though!)
The decision to replace an old white man with another old white man, rather than a more diverse selection, is also disappointing — especially given the ample judicial experience among people of color, LGBQT people, and disabled people who could also prove excellent picks for the seat. It's highly unlikely that the Republicans would ever confirm anyone other than a white man, and it's possible the Senate chamber might actually explode were it forced to consider, for example, a disabled woman of color.
Some pontificators are suggesting that after presenting Garland and watching him get turned down, the president will be making a sharp comment about the state of the Senate that could clear the way to a "real" nominee, but I'm not entirely convinced by this. The nomination appears quite genuine, and Garland's judicial philosophy, what we know of it, closely aligns with the president's own legal opinions. He also clearly thinks very highly of his nominee, as do a whole lot of very knowledgeable legal minds.
The next few days will determine whether Republicans can back down and do their jobs (feel free to give the Senate Judiciary Committee a ring at (202) 224-5225 to let them know your feelings on the subject, but be nice to the stressed-out soul who answers the phone), and whether the Merrick nomination will move forward. He's definitely not Obama's worst choice, and he's far from away the best choice, but he may have been the only choice.
Photo: Matt Wade/Creative Commons