President Obama on Wednesday announced that he wants Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the vacancy left by the death of Justice Antonin Scalia on the Supreme Court.
“Today I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court,” Obama said at the White House.
Garland, a Harvard Law School graduate who clerked for Supreme Court Justice William Brennan Jr., the legendary liberal champion, was among the three finalists for the high court nomination, along with Sri Srinivasan and Paul Watford, and was considered the safest bet because of his reputation as a centrist and his calm, consistent demeanor.
Obama announced his choice shortly after 11 a.m., but word of Obama’s choice leaked out shortly after Obama spoke with Democratic senators this morning.
Garland’s candidacy stands out because of his past support from key Republicans, including Sen. Orrin Hatch, R-Utah, who has praised his careful opinions, many of which lack overt ideological bias.
When earlier Supreme Court vacancies occurred during Obama’s presidency and Justices Elena Kagan and Sonia Sotomayor got the nod, Hatch had said Garland would have been “very well supported by all sides” as a Supreme Court nominee.
In 2010, when the president ultimately nominated Sotomayor to the high court to replace retiring Justice David Souter, Hatch told Reuters he has known Garland for years, that he would be “a consensus pick,” and that there is “no question” he would be confirmed.
“I know Merrick Garland very well,” Hatch said at the time, according to Reuters. “[Merrick] would be very well supported by all sides, and the president knows that.”
Curt Levey, a right-wing judicial activist who is now at FreedomWorks, predicted overwhelming bipartisan support for Garland in 2010.
“You’ll have, if not a love fest, something close to it if [the choice] is Garland,” he said, according to a New York magazine piece.
In addition to Hatch, Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C., also voted in favor of his confirmation to the U.S. Court of Appeals for the District of Columbia in 1997.
Despite that history, Republicans are still not expected to hold a hearing or a vote on him. Republicans for the last month have said they want the next president to nominate a replacement for Scalia, rather than Obama.
Heritage Action said Garland’s nomination shouldn’t mean the GOP will change its position.
“Nothing has changed,” said Heritage Action CEO Michael Needham. “Senate Republicans deserve credit for using their ‘advice and consent’ authority to ensure the American people’s voices are not ignored as they are in the process of selecting their next president.”
“The next president — Republican or Democrat — should be in the position to fill the Court’s vacancy with the advise and consent of the Senate,” he added.
President Bill Clinton nominated Garland to the U.S. Court of Appeals for the District of Columbia Circuit in 1997, and he was confirmed on a 76-32 vote, winning support from 32 Republicans.
Before the appointment, Garland was a partner at the prominent Washington law firm Arnold & Porter before and after serving as Assistant U.S. attorney for the District of Columbia in the late 1980s and early 1990s. He went on to become deputy assistant attorney general in the criminal division of the Justice Department where he oversaw two of the biggest domestic terrorism cases before the Sept. 11 attacks, the Oklahoma City bombing and the Unabomber prosecutions.
Garland’s decisions confirm his mostly centrist record, as well as his liberal leanings. He has ruled on cases dealing with the Park Services and the Americans with Disabilities Act, among other issues. When handling the Parks Services cases, his opinions clearly favored regulation in terms of environmental impact, including whether environmental organizations can challenge the building of power plants. His ADA rulings tended to favor plaintiffs, but his criminal justice record tended to favor law enforcement.
But when it comes to gun control, one of Obama’s well-known priorities that has hit a brick wall in Congress, Garland is know for helping to usher in stricter gun laws in D.C., as National Review recently pointed out.
Conservatives are seizing on those decisions as a sign that Garland likely would one to overturn one of Scalia’s most important decisions, D.C. v. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
In one key move in 2007, Garland voted to reverse a D.C. Circuit Court decision nullifying one of the most restrictive gun laws in the nation, which would have prevented a ban on handguns kept in homes for self-defense. He and Tatel did not win that vote, but if they had, the issue wold have likely gone to the Supreme Court for a final ruling.
