President Barack Obama will nominate Merrick Garland, the chief judge of the US Court of Appeals for the DC Circuit, on Wednesday to fill the Supreme Court seat of the late Justice Antonin Scalia, who died unexpectedly last month, multiple sources report.
Garland has been a Supreme Court short-lister for many years, but he has never made the cut during the Obama years. His qualifications for the post have never been questioned. First appointed to the DC Circuit in 1997 by President Bill Clinton, Garland has served as the chief judge since 2013. (The Senate confirmed Garland originally on a 76-to-23 vote, with 32 Republicans supporting him.) He’s a double Harvard grad—Harvard College and Harvard Law—and clerked for Supreme Court’s famous liberal lion, Justice William Brennan. He spent many years in the Justice Department as a prosecutor and oversaw the prosecutions of Unabomber Ted Kaczynski and Oklahoma City bombers Timothy McVeigh and Terry Nichols. He spent some time as a litigator in the private sector as a partner at the white-shoe firm of Arnold & Porter.
Garland has been married to Lynn Garland for 29 years. She worked for a defense contractor at the time she married Garland, but has a long legal background. Her grandfather was a justice on the New York State Supreme Court.
Garland is a fairly conservative choice for Obama, but opponents are already pointing to his rulings in a major gun control case in 2007 as a sign that he’s a left-wing radical. In that case, Garland voted to reconsider the Heller case, in which a three-judge panel struck down the District of Columbia’s strict ban on handgun possession. Garland didn’t succeed, and the case went to the US Supreme Court. The highest court then upheld the ruling in a controversial 5-4 decision in 2008, finding that the Constitution guarantees an individual right to bear arms.
Writing in the National Review, Judicial Crisis Network chief counsel Carrie Severino criticized Garland for voting against the National Rifle Association in a case that upheld a Clinton-era decision to retain records of gun sales against the wishes of Congress. The 2000 decision in National Rifle Association v. Reno allowed the Justice Department to hang on to gun sale records and background check information for six months so that the department could audit the records and ensure their accuracy. The NRA had argued that such a policy was illegal. And gun rights activists claimed the Clintonites were trying to create a national registry of gun ownership.
Severino, a former clerk to Justice Clarence Thomas and a leader of the current conservative campaign to block any Obama Supreme Court nominee, claims these two gun-related decisions indicate Garland “has a very liberal view of gun rights…That’s not so moderate, is it?”
If that’s the worst critics can find, Garland would typically still be confirmed. But this isn’t an ordinary confirmation process. Senate Republicans, including the chairman of the Senate Judiciary Committee, Charles Grassley (R-Iowa), have vowed to deny Obama’s Supreme Court nominee a hearing—and forget about a vote. (Severino’s outfit is spending heavily on ads to put pressure on the committee not to waver from that position.) That may be one reason why Obama chose Garland, who doesn’t meet any of the demands of liberal and civil rights groups for an Obama nominee who would add diversity to the court. Garland is a political sacrificial lamb for the White House.
At 63, Garland is more than a decade older than Chief Justice John Roberts Jr. was when he was nominated to the court in 2005. In a normal year, Garland would never have been picked because of his age and demographic profile. But he seems like a logical choice at a time when whomever Obama nominates isn’t likely to get confirmed. Fortunately for Garland, he will probably come away from this brutal nomination process largely unscathed, and he will get to keep his lifetime appointment on the DC Circuit. So he is taking one for the team. That will leave other potential candidates, such as DC Circuit Judge Sri Srinivasan, unblemished and ready for a real nomination if the presidency remains in Democratic hands, when the political climate isn’t so toxic and Republicans are not hell-bent on obstruction.