Could Merrick Garland be the Newest Supreme Court Justice?

On February 13, 2016, Supreme Court Justice Antonin Scalia was found dead at the Cibolo Creek Ranch in Shafter, Texas of apparent natural causes. His body was quickly embalmed, no foul play was investigated, and his funeral services were held on February 20 in Washington, D.C. (President Obama did not attend).

For many, Scalia represented nearly the last bastion of true conservatism on the Court (although Justice Clarence Thomas is arguably more right-leaning than Scalia was, he has been far less outspoken in his opinions). In numerous key cases, Scalia’s vote helped determine 5-4 majority decisions, such as the one that put George W. Bush in the White House in 2000.

Because there are now four liberal Justices and four arguably conservative ones, cases that are politically sensitive may not be decided by the Court in cases of ties; in these cases the decision of the lower court that heard the case prior to the Supreme Court is affirmed without a precedent being set.

On many issues such as abortion, Second Amendment rights and affirmative action, Scalia’s voice will be missed and Obama’s nomination for his replacement will not fill his shoes.

Obama’s nominated judge, Merrick Garland, is, like Obama, a former native of Illinois and a graduate of Harvard Law School. Garland was raised in a Jewish household and was a dedicated academic, becoming the valedictorian of his graduating class at Harvard where he received his undergraduate degree. He later served as president of Harvard’s Board of Overseers.

During summers in his Harvard years, Garland volunteered for Democratic Illinois Congressman Abner J. Mikva, who later became a judge in Chicago and later still a White House Counsel for President Bill Clinton.

After graduating Harvard, Garland enrolled in Harvard Law School. During which he worked on the Harvard Law Review, editing at least one submission by Supreme Court Justice William J. Brennan, Jr. After law school, Garland served as a clerk to Second Circuit U.S. Court of Appeals Judge Henry J. Friendly and later to liberal Supreme Court Justice Brennan in 1978 and 1979.

He then assisted Benjamin Civiletti, Attorney General under President Jimmy Carter until 1981, at which time he entered private practice, working in corporate litigation and lecturing at his alma mater Harvard Law School on antitrust matters. In 1989, he moved to Washington, D.C. to work as an assistant U.S. attorney, engaging on important cases such as the prosecution of former Washington, D.C. mayor Marion Barry on cocaine charges.

In 1993, Garland became a deputy assistant attorney general in the first Bill Clinton administration. In that role, he worked on high-profile bombing and terrorism cases, including those of the Ted Kaczynski (the Unabomber), Timothy McVeigh and Eric Robert Rudolph, who bombed the Atlanta Summer Olympics over the United States’ policies on abortion.

In 1995, his earlier mentor Judge Abner Mikva vacated his seat on the D.C. Circuit Court and President Clinton nominated Garland to fill the seat. During confirmation hearings in 1997, Republican Senators Chuck Grassley of Iowa, Mitch McConnell of Kentucky and Jeff Sessions of Alabama strongly opposed him among 20 other Republican Senators, but Garland was nevertheless confirmed.

Garland has been described by Carrie Johnson and Nina Totenberg of National Public Radio as “a moderate liberal”; his decisions avoid sweeping, unnecessary pronouncements. In his two decades of service on the court, he’s only written fifteen dissents, a remarkably low number for a judge of such tenure.

In the past, he’s consistently upheld contested EPA laws and argued in favor of the federal Endangered Species Act. He came to clash with future Supreme Court Chief Justice John Roberts when the latter served on the Circuit Court on cases involving whistleblowers and Amtrak.

Garland has had a hand in releasing Guantanamo Bay detainees and helping prisoners at the Abu Ghraib prison in Iraq sue military contractors. He’s ruled in favor of journalists seeking to keep sources anonymous and allowed petition signature gathering at U.S. Post Offices.

He was in favor of reviewing the landmark ruling overturning the ban on handguns in the District of Columbia. The Cato Institute’s Trevor Burrus has written that conservatives should be concerned about Garland’s stances on gun owner’s rights.

In fact, this is not the first time that President Obama has considered Garland for the Supreme Court. In 2009 and 2010, when liberal Justices David Souter and John Paul Stevens retired, Garland was on Obama’s short list for their replacements (those vacancies were later filled by Sonia Sotomayer and Elena Kagan, respectively).

At age 63, Garland is the oldest person nominated to be a Supreme Court Justice since 1971. His wife Lynn is the granddaughter of a Democratic Party activist and liberal justice of the New York Supreme Court. Garland has indicated his net worth is in the range of $6 million to $23 million, making him one of the wealthier Supreme Court justice candidates in history.

Senate Majority Leader Mitch McConnell has vowed not to hold confirmation hearings for any potential Court candidate nominated by President Obama during his last year in office. For the past two months, no Republican Senator has agreed to make time to meet with Garland or any other person put forward by Obama.

Only Senators Susan Collins of Maine and Mark Kirk of Illinois have stated publicly that they would be in favor of confirmation hearings. However, all of that changed on April 12 when previous objector Chuck Grassley, who is the chairman of the Senate Judiciary Committee, met with Garland, followed by a meeting with GOP Senators Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania. Eventually, 11 other Republican Senators agreed to meet with Garland.

All have vowed not to dissent from Majority Leader McConnell’s position on hearings but are under pressure from some of their constituencies regarding blocking due process. In fact, veteran incumbent Grassley (who hasn’t missed a Senate floor vote since 1993) has drawn a challenge from well-known Democrat and former Lieutenant Governor of Iowa Patty Judge specifically over the issue.

Grassley has felt heat not only from some of his constituents, some of whom have called press conferences and held demonstrations, but also on the Senate floor from Democrats. Specifically, Democratic Senate Minority Leader Harry Reid has called Grassley the “most political and partisan chairman in history.” He’s belittled Grassley’s objections to Garland as “ridiculous” and denigrating his pledge to transparency as “shallow as the shallowest puddle you can find.”

In response, Grassley has called Reid’s “frequent crying” and “juvenile attacks.” Indeed, this war of insults that has been near constant for the last two months has been a new low for the normally sanctimonious chamber.

Some Grassley supporters, such as Keith Uhl, who managed Grassley’s first Senate campaign, believe that the Republican-controlled Senate should simply “man up and vote,” but such an act could be risky for the political theater.

In the meantime, President Obama has taken the Garland case to nine key Senate battleground states. It’s here that Democratic groups and political action committees are running ads aiming at Republican incumbents, including Arizona Senator John McCain, North Carolina Senator Richard Burr, Missouri Senator Roy Blunt and Ohio Senator Rob Portman.

In some cases, these groups are running ads saying that blocking hearings on Obama’s choice for the Court could leave the decision up to less-than-favorite Republican Donald Trump. But moreover, keeping focus on this issue is aimed at inflicting maximal damage in Congressional races in November.

In states like Pennsylvania, the action may be having an effect. Poll numbers show that as much as 56 percent of the electorate is in favor of confirmation hearings, with 37 percent opposed. With Senator Toomey’s reelection bid looking very uncertain, these figures are surely cause for concern. In particular, the opinions of independent voters are crucial.

Meanwhile, conservative groups like Judicial Crisis Network have been running anti-Garland ads claiming the justice is “No Moderate” and that he is a threat to small business, Second Amendment and pro-life groups. JCN’s ads end with the tagline “Merrick Garland: a liberal judge from a liberal president.”

JCN has been quick to defend Chuck Grassley for “standing up to President Obama’s cynical attempt to force the Senate to confirm Merrick Garland, another liberal judge who will ensure the left dominates the Supreme Court for a generation or more,” according to Carrie Severino, the chief counsel of that organization.

Whether these groups’ ads will have their intended effect is not yet known. But with Garland’s credentials fairly indisputable, only his record can credibly be a target for attack. November is looking less and less far away. At the same time, the presidential race is a healthy distraction from Supreme Court and Congressional battles. However, they’re all intertwined, and whether voters will choose ideology over candidate personality at the ballot box this year remains to be seen.