Merrick Garland's probably doomed, strategically interesting nomination, explained

On Wednesday, March 16, President Obama nominated Chief Judge Merrick Garland of the Court of Appeals for the DC Circuit to succeed the late Justice Antonin Scalia on the Supreme Court.

In some ways, this is a totally predictable, normal nomination. Garland is a well-respected judge who's served for 19 years on the second most powerful court in America, winning plaudits from his liberal and conservative colleagues alike. Obama seriously considered him for two previous Supreme Court vacancies in 2009 and 2010. He would unquestionably be a more liberal judge than Scalia and move the Court as a whole to the left.

But the circumstances behind his selection are far from normal. In 2009 and 2010, Obama had a large Democratic majority in the Senate to work with. In 2016, he not only faces a Republican Senate, but Majority Leader Mitch McConnell has declared that no nominee will get so much as a hearing, and that the next president should choose Scalia's replacement.

Accordingly, Garland isn't the kind of nominee Obama would pick under normal circumstances. He's a white man, when Obama has focused heavily on making the judiciary less male and less white. He's 63, older than any nominee since Lewis Powell in 1971 and more than a decade older than Obama's last pick, Elena Kagan. And Court observers say he's considerably more moderate than Kagan or Sonia Sotomayor.

Strategically, Obama's nomination of Garland is designed to force McConnell and his fellow Senate Republicans to weigh how certain they are, really, that they can get a better deal after the election. The Senate GOP's choice is: Confirm the most conservative, and oldest, nominee one could realistically expect from a Democratic president; or accept either a younger, more liberal nominee from Hillary Clinton or a wild card from Donald Trump. And if they choose not to hold hearings at all, the Democrats can run against them as obstructionists who are refusing to do one of the Senate's most basic jobs.

1) Who is Merrick Garland?

Garland is one of the longest-serving judges on the DC Circuit Court, having been confirmed in 1997. He has served as chief judge (a rotating position based largely on seniority) since 2013.

Throughout his life, Garland has received just about every meritocratic distinction available. In high school, he was a National Merit Scholar and a Presidential Scholar, meeting President Richard Nixon in 1970 in the latter capacity:

He graduated first in his class from Harvard in 1974 with a summa cum laude degree in social studies, and continued on directly to Harvard Law, graduating magna in 1977. He paid his way through the latter by "taking a summer job as a shoe store stock clerk, selling his comic book collection and counseling undergraduates." He also served as articles editor on the Harvard Law Review.

He immediately thereafter received two extremely prestigious clerkships, with:

• Henry Friendly of the Court of Appeals for the Second Circuit, a legendary figure described as the "greatest judge of his era" by a recent biographer, and for whom Chief Justice John Roberts also clerked.
• William Brennan of the Supreme Court, a liberal titan who believed that adequately funded education was a constitutional right, that the government must fund abortions for low-income people, and that the death penalty is inherently unconstitutional. Scalia once described him as "probably the most influential justice of the century."

2) What was Merrick Garland's career like before he became a judge?

After his clerkships, Garland worked as a special assistant to Jimmy Carter's attorney general, Benjamin Civiletti, from 1979 to 1981, thereafter joining the high-profile DC-based firm Arnold & Porter, making partner in 1985. From 1987 to 1988, he took a leave to work in the federal independent counsel's office, prosecuting former Reagan official Lyn Nofziger on influence-peddling charges.

He left again in 1989 to become an assistant US attorney for DC — the equivalent of an assistant district attorney in most jurisdictions, because of DC's unusual quasi-federal status. In Obama's words, Garland "took a 50 percent pay cut [and] traded in his elegant partner's office for a windowless closet that smelled of stale cigarette smoke." Among other cases, he worked on the prosecution of then–DC Mayor Marion Barry for smoking crack on videotape with an ex-girlfriend/FBI informant:

Garland briefly returned to Arnold & Porter in 1992, but when Bill Clinton took office in 1993, he went back once again to the Justice Department — first as deputy assistant attorney general for the Criminal Division, and then as principal associate deputy attorney general. In the latter role, he supervised both the Unabomber case and, more notably, the Oklahoma City bombing.

Obama's speech announcing the nomination took particular pains to stress the latter case:

In the aftermath of that act of terror, when 168 people, many of them small children, were murdered, Merrick had one evening to say goodbye to his own young daughters before he boarded a plane to Oklahoma City, and he would remain there for weeks. He worked side by side with first responders, rescue workers, local and federal law enforcement. He led the investigation and supervised the prosecution that brought Timothy McVeigh to justice.

But perhaps most important is the way he did it. Throughout the process, Merrick took pains to do everything by the book. When people offered to turn over evidence voluntarily, he refused, taking the harder route of obtaining the proper subpoenas instead, because Merrick would take no chances that someone who murdered innocent Americans might go free on a technicality.

Merrick also made a concerted effort to reach out to the victims and their families, updating them frequently on the case's progress. Everywhere he went, he carried with him in his briefcase the program from the memorial service with each of the victims' names inside, a constant searing reminder of why he had to succeed.

Garland wanted to personally prosecute Timothy McVeigh and Terry Nichols, but his boss, Deputy Attorney General Jamie Gorelick, declined to let him, as he was needed in Washington. He was involved in the decision to seek the death penalty for both defendants. Oklahoma's Republican then-governor, Frank Keating, praised Garland's handling of the case and endorsed his eventual nomination to the DC Circuit, calling him "an intelligent, experienced and evenhanded individual."

On September 6, 1995, about five months after the bombing, Clinton nominated Garland for the DC Circuit Court. The nomination was held up for 19 months, with Garland finally winning confirmation on March 19, 1997, by a 76-23 vote. The opposition came not because of any substantive objections to Garland personally but because many Senate Republicans opposed filling the 12th seat on the court. "The issue is not Mr. Garland," Sen. Chuck Grassley (R-IA) told the New York Times. But eventually, the nomination came up for a vote with most Senate Republicans, including then-Judiciary Committee Chair Orrin Hatch, voting to confirm.

3) What sort of judge is Merrick Garland?

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Even when he was nominated in 1995, Garland was widely described as a moderate, "as fine a nominee as Republicans could hope to get from a Democratic President," the Times paraphrased Republican Senate aides as saying. That was due in large part to his history as a prosecutor; his involvement in the highest-profile capital case of the 1990s certainly didn't hurt.

But his 19 years on the bench have done even more to bolster his reputation as a moderate, particularly on criminal justice issues. In an exhaustive review of Garland's judicial record when he was last considered in 2010, the veteran Supreme Court litigator and commentator Tom Goldstein found that Garland was markedly less likely to rule in favor of defendants than other liberals on the DC Court:

Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions … Most striking, in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. Because disagreement among panel members on the D.C. Circuit is relatively rare, this substantial body of cases is noteworthy.

In 1999, Garland dissented from a case reversing a drug conviction because prosecutors inaccurately presented witness testimony in their closing statement. In 2003, he ruled not to suppress evidence from a search of a car and trunk that had been accessed without permission, because the police officers suspected the individual in the car had been involved in a shooting and were concerned for their safety. In that case, Judith Rogers, another Clinton appointee, dissented, claiming the search was illegal.

Goldstein has one useful comparison: In the period of time from 1997 to 2010, Garland joined "approximately a dozen published rulings reversing or vacating a defendant's conviction or sentence." The equivalent number for David Tatel, another Clinton appointee to the court widely viewed as a moderate, was 25, or about double.

However, Goldstein does note that Garland's stance on criminal justice doesn't appear to color his rulings on other issues. He has generally deferred to federal regulators when weighing challenges from industry groups, but has been sympathetic to challenges brought by environmental groups. He usually ruled in favor of plaintiffs in civil rights cases. He tends to fall on the side of government transparency when it comes to Freedom of Information Act issues, and ordered the government to disclose more information about the drone program in 2013, following an ACLU lawsuit.

4) What did Merrick Garland rule about Guantanamo Bay detainees?

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Besides criminal justice, the two most contentious parts of Garland's judicial record are his Guantanamo rulings and his gun rights decisions. In 2003, he joined a panel ruling against Guantanamo Bay detainee Fouzi Khalid Abdullah al Awda in the case of Al Odah v. US. The panel ruled that it didn't have jurisdiction and so couldn't consider al Awda's (also transliterated "al Odah") habeas corpus petition. That decision effectively left detainees no means by which to challenge their detention in federal courts, and was overruled by the Supreme Court in 2008.

"For the executive branch to have that kind of power over a person is unconscionable," American University law professor Herman Schwartz told the Washington Post in 2010, when Garland was last considered for the Court. "And for a judge to accept the total irrelevance of the rule of law is a betrayal of that judge's obligation to uphold the Constitution and this nation's ideals."

But Garland's defenders, including Goldstein, argue that he was bound by Supreme Court precedent and could not have ruled otherwise. His supporters further point to a 2008 ruling in which he overturned a determination that a Guantanamo detainee was an "enemy combatant," noting that the determination was based on almost exclusively classified evidence. "To affirm the Tribunal’s determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion," Garland wrote for a unanimous panel.

He also dissented in a 2009 ruling that held that Iraqi prisoners from Abu Ghraib could not sue the prison's contractors. "The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison," he wrote. "At the current stage of the litigation, we must accept these allegations as true. … No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors."

A ruling that falls in the middle is Bismullah v. Gates, a case where a panel on the DC Circuit ruled in favor of detainees and then the court declined to rehear the case as a whole (or en banc in judicial parlance). Most of the court declined to rehear the case because they thought the panel decided correctly. Garland declined to say that, and only explained that he thought it would disrupt ongoing Supreme Court litigation on Guantanamo to hear the case again.

The decision, Goldstein notes, reflects Garland's "oft-stated preference for deciding cases on narrow grounds."

5) Does Merrick Garland want to take my guns away?

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Probably not, no. But he does have two rulings on gun rights issues that are sure to spur opposition among Senate Republicans.

The first is DC v. Heller, a historic case that ultimately resulted in the Supreme Court striking down DC's handgun ban and establishing an individual right to bear arms in the Second Amendment. At the time, the Court was upholding a DC Circuit ruling by three-judge panel striking down the ban, which the DC Circuit then declined to rehear as a whole in 2007. But Garland dissented on that and wanted to rehear the case, suggesting he might have disagreed and thought the handgun ban was constitutional.

The second is NRA v. Reno, a 2000 case where Garland joined with Tatel in upholding a Justice Department regulation that allowed for an "audit log" of all criminal background checks in the recent past, a period to be no longer than six months. After that, entries for checks that prospective gun buyers passed were destroyed, and then records for failed checks were kept for 10 years. The regulation was meant to enforce the 1993 Brady Bill, which mandated the creation of an instant background check system.

The NRA and allies immediately sued when this rule went into effect, arguing that the Justice Department was violating the text of the Brady Bill, which called for records of passed background checks to be destroyed and banned the creation of a firearm registry. Tatel, joined by Garland, ruled that the law didn't require the immediate destruction of records, and as such that the regulation was allowed.

The right-wing judicial confirmation activist Carrie Severino has already attacked Garland for these two rulings in National Review. "He has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them," she writes. "He’s willing to uphold executive actions that violate the rights of gun owners." Liberal groups like Media Matters have countered that conservative DC Circuit Judge A. Raymond Randolph also wanted to rehear the handgun case, suggesting that Garland's position in that case doesn't suggest he's vehemently anti-gun.

6) What is Obama trying to do by nominating Garland?

In his announcement of the nomination, Obama repeatedly emphasized that Garland is a compromise candidate. He's beloved by both liberal and conservative fellow judges and universally regarded as a brilliant jurist. In 2010, Orrin Hatch, then-ranking member on the Senate Judiciary Committee, said there was "no question" Garland could be confirmed for a Supreme Court position — a quote Obama himself repeated.

"Over my seven years as president, in all my conversations with senators from both parties in which I asked their views on qualified Supreme Court nominees — and this includes the previous two seats that I had to fill — the one name that has come up repeatedly from Republicans and Democrats alike is Merrick Garland," Obama explained. "To suggest that someone as qualified and respected as Merrick Garland doesn't even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise, that would be unprecedented."

And the White House has chosen messaging that emphasizes Garland's more moderate or conservative qualities, especially on criminal justice:

This is a side of Obama we've seen again and again. His instinct, when faced with Republican opposition, is to craft a proposal meant to seem reasonable and then use Republicans' objections as evidence that they're extreme.

This is what Obama did during health care reform, when he encouraged the "Gang of Six" negotiations for a bipartisan bill to make himself seem reasonable and Republicans look like obstructionists. When he pushed the American Jobs Act stimulus measure in 2011, he emphasized, "The proposals in this jobs bill are the kinds that have been supported by Democrats and Republicans in the past." He endorsed a bipartisan debt plan that included way more spending cuts than revenue increases.

Obama's liberal critics often object that this approach doesn't yield fruit. His eagerness to seem reasonable about the debt in 2010 led to huge cuts in spending once Republicans won back Congress, and only relatively mild tax increases in late 2012. That premature austerity also hampered the economic recovery. His indulgence of bipartisan health care talks slowed down the process and might have prevented a more liberal plan from passing. And his conservative critics often argue that his efforts at outreach aren't sincere, and that his reasonable-seeming proposals aren't things that any self-respecting Republican could accept.

But Obama certainly believes this technique works, and it is probably the clearest explanation for his choice of Garland.

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There's a second way in which Garland could be politically useful for Obama. The president is giving Senate Republicans a choice: They can confirm a moderate liberal to the court now, knowing he's 63 and unlikely to stay on the court for long or join Ruth Bader Ginsburg and Stephen Breyer in trying to end the death penalty; or they can wait for Donald Trump or Hillary Clinton to choose their nominees.

If Clinton wins, she'll likely have a newly Democratic Senate on her side and could use it to appoint a younger, more liberal candidate than Garland. If she picks a 49-year-old like Garland's DC Circuit colleague Sri Srinivasan, that gives Democrats a seat for almost a decade longer. Combine that with the potential that her nominee would be to Garland's left, and Garland starts to look relatively attractive to Republicans.

Of course, the Republican nominee could also win. But that nominee will probably be Donald Trump, and while he's expressed support for reliable conservative judges like Bill Pryor or Diane Sykes, he's also a loose cannon, and no one really knows how he'd approach a vacancy once in office. "President Trump would have a free hand to nominate whomever he chooses," Princeton political scientists Jonathan Kastellec and Charles Cameron write at Vox's Mischiefs of Faction blog. "Since he is only loosely tied to the Republican brand and party apparatuses, Republicans need to worry about his commitment to appointing a reliably conservative nominee."

So Republicans' choices are: Confirm the most conservative, and oldest, nominee one could realistically expect a Democratic president to nominate; or accept either a younger, more liberal nominee from Clinton or a wild card from Trump.

Under the circumstances, it's not unreasonable to think Republicans would pick the former. Some conservative commentators already are:

Finally, there's a way in which Obama's selection of Garland is actually kind of an insult. Given Republicans' widespread opposition to any nominee, it's quite possible that anyone Obama picks will be rejected and thus too toxic for the next president to appoint. That could've deterred Obama from picking a nominee he wanted to leave available for Clinton, and encouraged him to pick someone more "expendable," whom he wouldn't be too sad to see never make it on the Court.

7) Why are some liberals upset about the choice of Garland?

Beyond Garland's views on criminal justice issues — which are well to the right of Obama's two previous nominees — perhaps the biggest disappointment to liberals is whom Garland was chosen instead of.

The National Organization for Women's president Terry O'Neill lamented that "we have to continue to wait for the first African-American woman to be named":

It's true: Basically anyone else on Obama's shortlist would have added diversity to the Court, and Garland just doesn't:

• Sri Srinivasan would've been the first Asian American, Indian American, or Hindu on the Court.
• Paul Watford would've been only the third African American on the Court, and him and Clarence Thomas serving together would mark the only time there was more than one on the Court serving simultaneously.
• Patricia Millett, Jane Kelly, or Ketanji Brown Jackson would've increased the number of women on the Court to four, for the first time ever.
• Kelly would've been the first public defender ever to serve on the Court.
• Ketanji Brown Jackson would've been the first African-American woman on the Court.

There were others outside the widely circulated shortlist who would've made history as well. The Ninth Circuit's Jacqueline Nguyen would've been the first Asian-American or Vietnamese-American woman; California Supreme Court Justice Goodwin Liu would've been the first Asian American, Chinese American, or Taiwanese American.

Liu's colleague Leondra Kruger would've been the first African-American woman on the Court, and at 39 she'd give liberals a seat on the Court for decades and decades. Mariano-Florentino Cuéllar, also on the California Court, would've been the first Mexican American, and I believe the first justice ever to have a PhD.

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The liberal critique of Garland is less that he himself is objectionable — though his criminal justice views prompt some concern — and more that he isn't as historic or liberal a pick as Obama could've made. What's more, these picks could've been more effective at mobilizing black, Asian-American, or Latino voters on Obama's behalf, especially if they look like they're being unfairly obstructed by Republicans.

Some liberal groups have also pointed out Garland's lack of a paper trail on certain key issues and expressed a desire for him to make his positions clear. "Judge Garland does not have a public record on reproductive rights and Senate Republicans’ obstruction denies all of us our right to know where this nominee stands on core constitutional questions of women's privacy, dignity, and equality," NARAL Pro-Choice America president Ilyse Hogue said in a statement. "With seven in ten Americans supporting legal access to abortion, we have a right to know where our justices stand on this important issue."

8) Will Republicans give Merrick Garland hearings?

Unclear, but it looks like no. Chuck Grassley, the Senate Judiciary Committee chair, voted against Garland in 1997, although his opposition was based on a belief that the DC Circuit was too big: "Mr. Garland seems to be well qualified and would probably make a good judge — in some other court."

And Grassley has already said he isn't interested in holding hearings for Garland. In a statement released after the appointment was announced, he explained, "A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year."

Senate Majority Leader Mitch McConnell — who also voted against Garland in 1997 — is holding the line as well. In a floor speech, he declared, "The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy."

Even Hatch, who encouraged Obama to appoint Garland in 2010, is saying no to hearings, explaining in a statement, " I stand with the majority of my Senate colleagues in concluding that the best way to exercise our advice-and-consent power is to conduct the confirmation process after the presidential election. … This approach to the Senate’s advise-and-consent role isn’t about the individual the President has chosen—it’s about the broader principle." Just this past Friday, Hatch had called Garland a "fine man" and expressed doubt that Obama would appoint him over more liberal options.

But while the leadership is still in lockstep against Garland, opposition appears to be cracking among more moderate Senators, especially ones up for reelection. Sen. Mark Kirk (R-IL), who faces a tough reelection battle, has said he'll weigh Garland's nomination "based on his record and qualifications," while Jeff Flake (R-AZ) and Susan Collins (R-ME) have said they'll meet with him. Sens. Rob Portman (R-OH), James Inhofe (R-OK), and Kelly Ayotte (R-NH) have reiterated their opposition to replacing Scalia this year, but said they'd meet with Garland out of courtesy.

9) What about the lame-duck period? Could Garland be confirmed then?

If you read Republicans' statements about the importance of not confirming a nominee, they will sometimes speak of the need to punt this issue to the "next president," and sometimes of wanting to delay it until "after the elections."

These aren't actually the same thing, as two potential scenarios for a Garland confirmation illustrate:

1. Imagine Hillary Clinton wins the presidency. Senate Republicans might figure that Garland is better (older, less liberal) than whomever Clinton will nominate, especially if Democrats win back control of the Senate, making it easier for her to pick a liberal nominee. So they might take the opportunity to confirm Garland before the new Senate is inaugurated on January 3.
2. Imagine that Democrats retake the Senate but not the presidency. This isn't especially likely, but it's conceivable. Democrats could then confirm Garland in the days between retaking the Senate (January 3) and the new Republican president's inauguration (January 20).

The first scenario is already being discussed favorably in Republican circles:

My unsolicited advice to GOP Senate: Hold hearings for Garland. Do the work. Then wait for Nov. Lame duck can confirm him after all is lost.

— Matthew Continetti (@continetti) March 16, 2016

These are both sort of wacky outcomes. But this is a wacky nomination to start out with, and with Clinton heavily favored to win a general election against Trump, it might make sense for Republicans to start making preparations for a post-loss confirmation for Garland.

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