Judge Garland On the Issues








Introduction

On February 13, 2016, Associate Supreme Court Justice Antonin Scalia died at the age of 79, creating a vacancy on the Supreme Court. This is the third Supreme Court vacancy to arise during President Barack Obama’s administration, following the retirements of David Souter and John Paul Stevens in 2009 and 2010, respectively. After news broke of Justice Scalia’s death, it took only hours for Senate Republicans to set aside their constitutional obligations and pledge to obstruct any attempt by President Obama to fill the vacancy.

Merrick GarlandBut President Obama fulfilled his own constitutional obligations and selected a highly qualified and dedicated public servant as his nominee. On March 16, 2016, President Obama nominated Merrick Garland, Chief Judge of the United States Court of Appeals for the D.C. Circuit, to the Supreme Court. President Obama praised Judge Garland as “one of America’s sharpest legal minds” and “someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence.”1

Judge Garland’s resume is unassailable, and neatly fits the mold of the modern consensus judicial nominee. He is Ivy League educated, clerked on the Supreme Court, has experience both as a corporate lawyer and prosecutor, and, of course, currently sits on the D.C. Circuit. Of the Supreme Court’s eight current justices, three came directly from the D.C. Circuit (as did Justice Scalia), and all but one (Justice Elena Kagan) served on a federal court of appeals. Two justices are former prosecutors, and all eight have an Ivy league education. Only one, Justice Ruth Bader Ginsburg, worked as a lawyer at a public interest organization (the American Civil Liberties Union), and the Supreme Court has not had a justice with significant indigent criminal defense experience since Thurgood Marshall retired in 1991.

With such pristine, mainstream credentials, Judge Garland has received bipartisan praise throughout his career. Indeed, some of the very Senate Republicans who have so far refused to hold a confirmation hearing on his nomination have also lauded Judge Garland’s character and qualifications. Senator Orrin Hatch has described Judge Garland as a “consensus nominee”2 and as someone whose “integrity,” “honesty,” “legal ability,” and “intelligence” “cannot be questioned.”3 Senator Jeff Sessions has applauded Judge Garland as “a fine person and an able lawyer.”4

Yet others who oppose Judge Garland’s nomination have chosen to distort rather than seriously engage with his judicial record.5 They would rather the public see only the record they present in smear campaigns and attack ads, not the record that would emerge in a full, open, and fair confirmation hearing.

This report answers such superficial distortions with comprehensive analysis.

This Alliance for Justice report evaluates the nomination of Chief Judge Merrick Garland to the Supreme Court. Our goal is to capture who Judge Garland is as a lawyer and a jurist in order to better understand who Judge Garland would be as a justice. After a thorough review of his judicial record, the primary conclusion is that, on the merits, Judge Garland is highly qualified to serve on the Supreme Court, and there is no legitimate basis for the Senate to deny him full and fair consideration. Throughout his judicial career, Judge Garland has demonstrated extraordinary intellect, fairness, humility, and an unwavering commitment to the rule of law. And across issue areas, he has been a model of judicial restraint—strictly adhering to Supreme Court precedent, avoiding sweeping proclamations when a more narrow rationale will suffice, and restricting rulings to only those issues fully briefed and properly presented to the court. Judge Garland’s voluminous writings clearly establish that his approach to deciding cases is not about ideological outcomes, but about rigorous legal analysis, fully accounting for the relevant law and facts in each case.

Judge Garland is highly qualified to serve on the Supreme Court, and there is no legitimate basis for the Senate to deny him full and fair consideration. Throughout his judicial career, Judge Garland has demonstrated extraordinary intellect, fairness, humility, and an unwavering commitment to the rule of law. … Judge Garland’s voluminous writings clearly establish that his approach to deciding cases is not about ideological outcomes, but about rigorous legal analysis, fully accounting for the relevant law and facts in each case.

Fully assessing Judge Garland is no small task. Judge Garland’s professional career spans almost 40 years, nearly 20 years of which have been spent as a judge on the D.C. Circuit. Combined with his clerkship, law firm, and prosecutorial experience, Judge Garland has an extensive record from which to cull information.6 Our focus is Judge Garland’s record on the D.C. Circuit. Where appropriate, we include references to some of Judge Garland’s extra-judicial materials, such as law review articles and responses to Questions for the Record from his D.C. Circuit nomination, but the driving force of our evaluation is the cases he has decided.

This still leaves a record consisting of hundreds of cases, not all of which may provide valuable insight into Judge Garland’s views or judicial philosophy. Thus, for purposes of this report and except for two issue areas, we did not review cases in which the court issued a unanimous opinion that Judge Garland did not author. (The two exceptions to this are criminal cases and cases dealing with Guantanamo detainees and other national security issues.) This left for review cases in which (1) Judge Garland authored the opinion of the court, unanimous or otherwise; (2) another judge authored the opinion of the court that was not unanimous, meaning there was a dissent or concurrence by Judge Garland or another judge; (3) the court issued a per curiam opinion with a separate dissent or concurrence by Judge Garland or another judge; and, (4) the court denied rehearing en banc and one or more judge filed a dissent or concurrence in the denial.

This universe of about 450 cases suitably captures Judge Garland’s jurisprudence for three reasons. First, it includes all of Judge Garland’s written opinions, which provide insight into his substantive views, approach to judicial decisionmaking, and temperament.

Second, it captures every split decision in which Judge Garland participated. Split decisions are uniquely valuable because they involve the most closely contested issues, and, unlike unanimous decisions, necessarily involve legal questions that do not compel a uniform result. Because split decisions provide an objective basis to conclude that a case could have come out differently, they are especially useful for identifying trends and drawing distinctions between individual judges. Importantly, we always identify split decisions by the particular issue over which the court divided.

Third, these cases capture all of Judge Garland’s dissents and concurrences. Majority opinions are written to build consensus and therefore typically contain straightforward and anodyne legal analysis. But judges write separately to express their own judicial philosophies and personal views of the law, making dissents and concurrences especially useful guides for evaluating an individual judge.

Our analysis of these cases is both quantitative and qualitative. Rather than present rote summaries of all the cases we reviewed, the report highlights aspects of these cases that provide insight into Judge Garland’s decisionmaking, issue by issue. With a particular focus on split-panel decisions and significant opinions Judge Garland has authored, we present analysis of important topics covered by the cases and, where possible, explore any patterns or trends that emerge.

ABOUT JUDGE GARLAND JUDGE GARLAND ON THE ISSUES

Back to top