Our series of profiles of potential nominees to replace retiring Supreme Court Justice John Paul Stevens continues with Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.
Judge Garland’s credentials are impeccable. An honors graduate of Harvard University and Harvard Law School, he clerked for Judge Henry Friendly of the Second Circuit and U.S. Supreme Court Justice, William Brennan. He served as Special Assistant to the Attorney General of the United States from 1979 to 1981. He then entered private practice with Arnold & Porter in Washington D.C. In 1989 he returned to the Justice Department as an Assistant U.S. Attorney for the District of Columbia. After three years, he returned to Arnold & Porter but in 1993 he returned once more to public service when he was appointed Deputy Assistant Attorney General in charge of the Criminal Division. In this role he supervised a number of high profile cases such as the Oklahoma City bombing and the Unabomber case. It has been noted that Judge Garland’s background is very similar to that of Chief Justice Roberts.
President Clinton appointed Judge Garland to the D.C. Circuit in 1995. His appointment was held up for political reasons. Republican senators, then in the majority, had no issues with Judge Garland’s qualifications or judicial philosophy, but argued that the D.C. Circuit did not need additional judges in light of its case load. Judge Garland was finally confirmed in 1997.
Judge Garland is widely recognized as an expert on antitrust and, particularly, administrative law. Interestingly, in the 1980s Garland was involved in an academic debate over Cass Sunstein, currently Administrator of the White House Office of Information and Regulatory Affairs, and a person frequently mentioned as a potential Supreme Court candidate. The subject of the debate was the scope and purpose of judicial review of administrative agencies. Generally, Sunstein favored a “hard look” approach to agency decisions, scrutinizing them to assure that they had considered the interests of all relevant stakeholders. Garland, by contrast, urged that the focus of review should not be so much upon representation but upon ensuring fidelity to the language and purpose of Congress. Other writings urge that the states be free to make policy choices and that federal regulations, particularly economic ones, should not preempt them.
The case load of the D.C. Circuit is atypical, with much of its business coming from the regulatory agencies. Join us below the jump for a review of some of Judge Garland’s notable decisions.
- Rempfer v. Sharfstein, 583 F.3d 860 (D.C. Cir. 2009) Affirmed FDA determination that an anthrax vaccine was safe and effective against challenges to the limited number of studies supporting the conclusion;
- Northeast Beverage Corp. v. N.L.R.B., 554 F.3d 133 (D.C. Cir. 2009). Judge Garland dissented, arguing that the panel should have deferred to Board’s ruling that, under the circumstances presented by the case, workers were engaging in a protected activity when they left work to seek information.
- FedEx Home Delivery v. N.L.R.B., 563 F.3d 492 (D.C. Cir. 2009). Judge Garland dissented, arguing that the panel should have deferred to the Board’s determination that single-route drivers were employees rather than independent contractors.
- United States v. Jones, 567 F.3d 712 (D.C. Cir. 2009). Conviction upheld where allegedly based on a statement made by the accused before he had received a Miranda warning.Judge Garland’s opinion applied a public safety exception and found that the officer was justified in asking the defendant what he had on him before proceeding with the Miranda warning;
- United States v. Johnson, 519 F.3d 478 (D.C. Cir. 2008). Conviction following a Terry stop upheld in view of all the facts known by the officer at the time of the stop. It would appear that Judge Garland is immune from a “soft on crime” attack.
- National Ass’n of Manufacturers v. Taylor, 582 F.3d 1 (D.C. Cir. 2009), Upheld provisions of the Honest Leadership and Open Government Act requiring lobbyists to disclose organizations that contributed money or actively participated in planning or supervising lobbying activities, rejecting the argument that the provisions impinged upon First Amendment associational rights;
- Waters v. Rumsfeld, 320 F.3d 265 (D.C. Cir. 2003), Upheld the Fair Labor Standard Act’s exemption of military commissary employees from the minimum wage requirements from an Equal Protection challenge.
- Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), Dissenting from holding that tort claims against military contractors in a case arising from the Abu Ghreib scandal were preempted by the combatant activities exception to the Tort Claims Act;
- Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), Held that evidence was insufficient to support the designation of enemy combatant.
Judge Garland’s opinions show a meticulous legal craftsmanship. If he has policy preferences, they are kept carefully hidden. He appears to be more interested in divining a “correct” legal conclusion than in advancing any particular agenda. In Judge Garland’s 13 years on the D.C. Circuit he has largely avoided the type of highly controversial decision that would provide fodder for the administration’s political adversaries.