Today President Barack Obama announced the nomination of Merrick Garland to replace the late Antonin Scalia on the U.S. Supreme Court.
Merrick Garland is 63 years old and currently serves as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. A former Justice Department official in the Clinton administration, Garland was nominated to the D.C. Circuit by President Bill Clinton in 1997 and confirmed by the U.S. Senate by a vote of 76-23. Sen. Orrin Hatch remarked at the time that Garland was "not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration."
Garland's nomination is likely to come as a disappointment to many progressives. While Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.
In the area of criminal law, for example, Garland's votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions."
Likewise, Garland voted in support of the George W. Bush administration's controversial war on terrorism policies in the Guantanamo detainee case Al Odah v. United States, in which Garland joined the majority opinion holding that enemy combatants held as detainees at the U.S. military facility at Guantanamo Bay were not entitled to habeus corpus protections. The U.S. Supreme Court ultimately overruled that decision, holding in the landmark case Boumediene v. Bush that Guantanamo detainees do enjoy habeus corpus rights.
Conservatives and libertarians are likely to be concerned by Garland's actions during the litigation that ultimately culminated in the landmark gun rights case District of Columbia v. Heller (2008), in which the Supreme Court held that the Second Amendment protects an individual right, not a collective one, to keep and bear arms. In 2007 that case was decided in favor of Dick Heller's Second Amendment rights by a three-judge panel of the D.C. Circuit. Washington officials promptly appealed that loss, asking a full panel of the D.C. Circuit to rehear the case, which would have had the immediate effect of putting a stop to the panel's judgment. Garland was among the D.C. Circuit judges who voted in favor of a rehearing by a full D.C. Circuit panel. That rehearing was ultimately denied and the case went on to the Supreme Court. While this example is by no means conclusive, it does at least suggest that Garland may believe that both the D.C. Circuit and the Supreme Court got it wrong in Heller. It would be helpful to hear more from Garland about his views on the meaning and scope of the Second Amendment.
Now that President Obama has named his nominee, the next move rests in the hands of the Senate Judiciary Committee. Senate Republicans continue to maintain that they will not consider any nominee put forward by a "lame duck" president. According to those Republicans, the next president should fill Scalia's seat, thereby giving the voters an opportunity to shape the future of the Supreme Court via the democratic mechanism of the 2016 election. If Senate Republicans hold to that line, it will mean no hearings and no vote on Merrick Garland's nomination.
The political battle over the future of the Supreme Court is about to heat up.