President Barack Obama today surprised many by nominating the moderate Chief Judge of the United States Court of Appeals for the District of Columbia Merrick Garland. Garland is unlikely to thrill liberals. He is fairly conservative on criminal cases and tends to favor government interests. Conservatives are not going to like his vote to move to reconsider the case that became the historic Heller decision that recognized the individual right to bear arms under the Second Amendment. However, Garland moves virtually everything off the table for the Republicans. While a moderate, he is as far right as a Democratic president could go.
In some ways, the Garland nomination seems to take a chapter from the sales book for car dealers. You take away every possible barrier while adding every possible extra from bucket seats to undercarriage rust proofing to leave only the question of whether you want to buy a car or not. Garland is a moderate who will be viewed by many liberals as too conservative. His age (63) and jurisprudence makes him less likely to be a truly transformative or legacy appointment. If you are looking for the lightest jurisprudential footprint, Garland would be that nominee. The President seems to be inviting the GOP to take out this nominee for a drive and “you will just love this ride.” They are clearly not buying however.
In truth, Garland would move the Court to the left by the mere fact that Scalia was so far to the right. He could indeed flip the result on campaign financing, gun rights, affirmative action and abortion. He would also likely support executive powers and federal agencies generally, but not necessarily uniformly. Since Scalia was a big supporter of the Chevron doctrine (as I discussed yesterday in testimony before Congress), this may not move the needle significantly and would not change administrative law on the issue of deference to federal agencies. Notably, however, in 2013, Garland voted against the administration on the secrecy surrounding drone strikes. He also, in 2008, he ruled that suspects could not be held as enemy combatants without an evidentiary foundation and, in 2004, ruled against the Environmental Protection Agency for the delay of enforcement of ozone standards in the District of Columbia.
Judge Garland’s vote to rehear the Parker (which became Heller) was joined by three other judges (against six rejecting a rehearing). As I discussed on NPR, he could certainly address that vote in a confirmation hearing if he had the opportunity. Judging from his past cases, there is a general view that Judge Garland did not agree with the general premise of the constitutional claim that this is an individual right to bear arms. Yet, Judge Garland could also argue that he did not feel that the existing case supported such a ruling and that as a lower court he felt constrained in reaching such a decision. However, the constitutional question was viewed by many as an open one — even though both sides believed strongly in the merits of their respective interpretations. He could also have disagreed with the analysis as opposed to the result. The oral argument primarily concerned the threshold question of the constitutional claim on the interpretation of the second amendment. Obviously, the vote raises a serious flag for those who do not want to risk undermining Heller, which is one of another of constitutional cases that could easily flip with the addition of the new justice. The general view is that Garland voted on the merits. If that is the view of conservatives, it could prove a barrier in a post-election push for his confirmation (if Hillary Clinton is elected). Indeed, if the NPR takes the view that he is anti-gun rights, it could “score” the confirmation vote — a serious threat for some senators of both parties.
Ironically, as I mentioned on Fox this morning, the moderate record of Garland may support the GOP in arguing that this is not about ideology but timing. Sen. Mitch McConnell has already portrayed this as “the Biden rule” in citing the position opposing consideration of a nominee in the final year. President Obama himself supported the filibuster of Justice Alito. McConnell has mapped out a position that this is not about “a person but principle” and that is unlikely to change.
Notably, Garland would continue the lock of the Court by Harvard and Yale graduates. It remains highly frustrating to many academics to see this absurd exclusive club. This county is the leader of the world in legal education with dozens of world-class law schools. Yet, once again, President Obama has stayed with these two schools.
I will be continuing commentary today at CNN, FOX and BBC but may blog from the road.