Merrick Garland was part of a panel of three highly regarded federal judges in 2000 that considered a carefully litigated lawsuit seeking to win voting representation in Congress for the people who live in the nation’s capital. Sitting as the appeals court judge on a special three-judge district court, Garland joined with Judge Colleen Kottar-Kotelly in rejecting the suit even after acknowledging in an opening passage that the “grievances” complained of by District of Columbia citizens were “serious.”
In a jointly authored opinion for the court, Garland and Kottar-Kotelly concluded that they could find no basis to require voting representation for D.C. residents. Seats in the House of Representatives are apportioned among the “states,” and the District of Columbia simply is not a state, the two judges wrote in Adams v. Clinton. Point by point, they said that nothing in the Constitution gives D.C. residents the same voice in Congress that other Americans enjoy: not the Equal Protection Clause, not the Privileges and Immunities Clause, not the clause that guarantees “a republican form of government.”
In a forceful and equally detailed dissent, Judge Louis Oberdorfer concluded that “principles of equal protection” entitled D.C. residents to voting representation in Congress. The plaintiffs appealed to the Supreme Court, but the justices affirmed Garland’s co-authored decision without hearing arguments.
Garland’s role in the case exemplifies the reasons why his nomination to the Supreme Court on Wednesday [March 16] simultaneously produced such widespread praise but muted disappointment as well. Garland’s many admirers – elected officials in both parties and lawyers and advocates across the ideological spectrum – depict him as a judge’s judge: careful, moderate, evenhanded, meticulous, on and on. But the D.C. voting rights case also illustrates that this kind of judicial craftsmanship can sometimes limit the courts’ ability actually to do justice.
Garland’s truly impressive resume — Harvard degrees, prestigious judicial clerkships, Arnold & Porter, Justice Department — has no evidence as such of working for social justice, civil rights, or civil liberties. He is a former prosecutor with no record of criminal defense or pro bono cases.
If confirmed, Garland would join a court with two former prosecutors — Alito and Sotomayor — and no former criminal defense lawyers. Obama passed up the chance to nominate Judge Jane Kelly to be the first former public defender on the court, reportedly fearful that opponents could use her former clients in attack ads.
Announcing the nomination in a Rose Garden ceremony, President Obama depicted Garland as the very antithesis of the liberal activist judge so feared by Republicans and conservatives. Garland struck a similar theme. A judge, he said, “must put aside his personal views or preferences and follow the law — not make it.” Garland’s record on the U.S. Court of Appeals for the District of Columbia Circuit — he completes his 19th year on Sunday [March 20] — seems to bear him out.
Consider a pair of cases involving Guantanamo detainees. In June 2008 Garland joined two Republican appointees in the D.C. Circuit’s first decision rejecting the government’s holding of a prisoner — specifically, a Chinese Uighur — as an enemy combatant. Five years earlier, however, Garland had joined a unanimous panel that held, under existing Supreme Court precedent, that federal courts had no habeas corpus jurisdiction over Guantanamo cases. A year later, the Supreme Court reversed that decision (Rasul v. Bush).
Garland left Arnold & Porter twice — first to work as an assistant U.S. attorney and then to serve as second in command in the Justice Department’s criminal division. It was in that capacity that he personally directed the prosecution of the Oklahoma City bombers and oversaw the prosecution of Unabomber Ted Kaczynski. His experience as prosecutor seems reflected in his record as a judge in criminal law cases. “Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions,” SCOTUSblog’s Tom Goldstein wrote in an assessment of his record in 2010 when Garland was short-listed for the Supreme Court seat being vacated by Justice John Paul Stevens.
Goldstein concluded that Garland would have shifted the court to the right on criminal law had he been nominated and confirmed then. Oddly, he might also shift the court to the right if confirmed to succeed the conservative justice Antonin Scalia. As Scalia often boasted, his strict application of some Bill of Rights protections often favored criminal defendants.
In other areas, Garland has shown himself to be no patsy for the government, no roadblock for justice-seeking plaintiffs. He dissented in September 2009 from a decision barring detainees from suing CIA contractors for unlawful detention and joined a unanimous decision in 2011 reviving the prosecution of Blackwater guards for a shooting in central Baghdad that left 14 people dead.
Garland wrote for a 2-1 majority in September 2012 to reinstate an age discrimination suit against the State Department, which claimed the right to enforce France’s mandatory retirement law against a U.S. citizen stationed abroad. He joined the decision in April 2013 to revive a suit stemming from the allegedly political firings by the Bush administration’s Justice Department.
In rating Garland in 2010, Goldstein viewed him as the least liberal of the two other front-runners, including the eventual nominee: Elena Kagan. This time around, Garland appears to have been chosen over the younger and newer D.C. Circuit judge: Sri Srinivasan, whose record offers few clues about his position on the ideological spectrum. Women’s and minority groups were hoping for more diversity on the court, while some progressives appeared to viewed moderation as a drawback, not a strength.
Garland’s 19 years’ worth of opinions and votes would give senators of both parties much to examine and debate in confirmation hearings. Roberts, Alito, Sotomayor, and Kagan all submitted themselves to the process and all survived, though by Senate votes more divided each time along party lines. Garland surely could survive if given the chance, but Senate Republicans appear to be dug in on their position that he will get no hearing, much less a vote. History may well list Merrick Garland as the best Supreme Court nominee ever not to get a hearing or a vote.
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