The Volokh Conspiracy

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Initial thoughts on President Obama's decision to nominate Judge Merrick Garland to the Supreme Court


Today, President Obama will nominate Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to replace Justice Antonin Scalia on the Supreme Court.

There are several notable things about Garland. First, he has impeccable credentials. He has served on the D.C. Circuit since 1997, when he was nominated by President Clinton, and has been the court's chief since 2013. Before becoming a judge, he served in the Justice Department in both the Carter and Clinton administrations and also worked for Arnold & Porter. He also served as a law clerk to Justice William Brennan and Judge Henry Friendly.

Garland is incredibly well-respected and has a reputation as a moderate liberal judge. On the D.C. Circuit, Garland tends to write and join narrow opinions that rarely break new ground. His decisions tend to hew closely to applicable precedent and (where possible) avoid larger questions, and are generally devoid of ideological thrusts or rhetorical flourish. In this sense, he is the consummate appellate judge. Garland also has a reputation for not being particularly sympathetic to criminal defendants, at least as compared with other appellate judges nominated by Democratic presidents.

While Garland has been a fairly moderate judge on the D.C. Circuit, this does not necessarily mean he would be a moderate Supreme Court justice. If I had to make a prediction, I would expect a Justice Garland to be more moderate, or closer to the center of the court, than is Justice Sonia Sotomayor, but it is hard to tell. As a judge on an intermediate appellate court, Garland has had an obligation to follow applicable precedent, and he has clearly taken this obligation quite seriously. On the Supreme Court, however, a Justice Garland would be freed from any such obligation, so his performance on the D.C. Circuit is not necessarily predictive of how he would act as a justice. His time on the D.C. Circuit gives little indication of how he would rule on hot-button constitutional issues, such as abortion.

At 63, Garland is also the oldest Supreme Court nominee in quite some time. This is interesting because it means that, if confirmed, a Justice Garland would not provide as much of a lasting legacy for Obama as would a younger nominee. If confirmed, it's likely that Justice Garland would not serve as long as Obama's other nominees to the high court.

The combination of Garland's age and reputation for moderation and minimalism means that the stakes of this nomination are lower than they might have been. The degree of change that would result from replacing Scalia with Garland is less than if Obama had opted for a younger and more liberal nominee. That said, a Justice Garland could still have a substantial effect on the law in a relatively short time, particularly on issues such as race and abortion. Garland's votes in gun cases also suggest that he might be a vote to roll back (if not effectively overturn) D.C. v. Heller and McDonald v. Chicago. This alone may be enough to spur many Republicans to stand firm against considering his nomination.

Obama's decision to tap Garland is also particularly interesting given the rise of Donald Trump. Republican opposition to considering Obama's nominee means that the seat would be filled by either a President Hillary Clinton or President Donald Trump, and there's a decent chance that a President Clinton would have a Democratic Senate, too. Although Trump has identified two conservative appellate judges (Bill Pryor and Diane Sykes) as potential Supreme Court nominees, there's no reason to believe a President Trump would be any more consistent on this than he is on anything else in the unlikely event that he is the next president. It's hard to see why #NeverTrump folks would want to save the seat for him. But if Hillary Clinton is elected president, it's quite possible the Senate could consider and confirm Garland in November or December, after the election. This has happened more often than one might think.

For what it's worth, were I in the Senate I would vote to confirm Garland to the Supreme Court, but I've always supported the prompt consideration and confirmation of all qualified judicial nominees. The Senate, however, has not hewed to this view for quite some time, so I am not ready to predict that Garland will be confirmed. But whatever course the Senate takes, I hope that Garland is treated with respect. #NoBorking.

UPDATE: A few additional Garland tidbits.

First, Judge Garland is no stranger to the nominate-and-wait phenomenon. He was initially nominated to the D.C. Circuit by President Clinton in September 1995. He received a hearing that December, but was not confirmed until 1997, after the intervening presidential election.

Second, remember the case of the hapless toad? Then-Judge John Roberts's first opinion as a judge on the D.C. Circuit was a dissent from denial of en banc review in Rancho Viejo v. Norton, a constitutional challenge to the prohibition on "taking" endangered arroyo toads. The panel majority opinion that Roberts objected to was written by Judge Merrick Garland.