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Obama’s Witness for the Prosecution

Merrick Garland's appointment to the Supreme Court would ensure deference to bipartisan executive overreach.
Merrick Garland Obama

President Obama’s pick to replace the late Antonin Scalia on the Supreme Court is, perhaps surprisingly, a consensus candidate who up until now has enjoyed strong support from both Republicans and Democrats in Congress. But constitutional scholars say behind Merrick Garland’s centrist profile is a pattern of reinforcing government and police powers that civil libertarians may find a bit difficult to live with.

“His record on the DC Circuit suggests he is highly deferential to administrative agencies and possibly overly pro-government when it comes to the rights of criminal defendants,” said George Mason University School of Law professor Ilya Somin. “These latter two issues are ones that divide both liberals and conservatives internally as much as they are a right-left divide.”

In other words, while both liberals and conservatives (including the late conservative icon, Scalia) may applaud Garland’s tendency to side with the government on national security and law enforcement powers, limited government types may have much less to celebrate with him on the bench.

“The guy is clearly in the pocket of the executive branch,” offered constitutional lawyer Bruce Fein, a bit more bluntly. “He hasn’t written anything that suggests he has ever dissented from this inclination, from being entrenched with the executive on all issues of foreign policy.” To think one can separate post 9/11 domestic surveillance and counterterrorism from foreign policy, Fein added, “is ridiculous.”

Through the lens of presidential politics, President Obama’s nomination of Garland is at best, a clever attempt to squeeze one last justice on the bench before he leaves office, at worst, the old story of the sacrificial lamb.

More astute observers have already settled on the latter, comparing the impeccably qualified Garland, who is the Chief Judge on the U.S. Court of Appeals for the D.C. Circuit, to Reagan nominee Robert Bork, then-D.C. Circuit chief, on President Reagan’s way out in 1987. After that dark hour in political theater, the verb “to Bork” has forever become synonymous with the full-on obliteration of a nominee by the opposing party in power.

Otherwise, conventional wisdom holds Garland up as a moderate liberal standard bearer with stalwart legal credentials—right out of “central casting,” as the Washington Post puts it—which includes Harvard Law, two clerkships—one with conservative federal circuit court judge Henry Friendly and the other with Supreme Court justice William Brennan—and a successful U.S. Justice Department career in which he prosecuted two of the most hated domestic terrorists in modern U.S. history—Oklahoma City bomber Timothy McVeigh and the Ted Kaczynski, also known as “the Unabomber.”

Garland, 63, who has been on the D.C. Circuit—known for being one of the more conservative of the federal appeals courts in the system—for 19 years, is described as the embodiment of bipartisan judicial restraint. Long before now, he was embraced by Republicans as a “consensus pick.” Observers say he would occupy the middle in the mold of Justice Anthony Kennedy, and with his conciliatory temperament and centrist, case-by-case adjudication, could provide the level-headed swing vote on some of the most highly politicized cases to reach the court, said Steve Vladeck, law professor at American University.

But constitutional scholars who spoke with TAC, including Vladeck, warn against taking Garland’s “moderate” jurisprudence to mean that he would not defer to the executive branch, particularly on national security and criminal cases. Nearly two decades of rulings on federal law enforcement cases and more recently, a slew of Guantanamo Bay detainee rights issues, undergird that evaluation quite soundly, said Vladeck.

“Given his experience as a prosecutor—and a terrorism prosecutor, to boot—it stands to reason that Judge Garland would be relatively sympathetic to the government’s position vis-à-vis typical domestic surveillance and other terrorism-related law enforcement issues,” said Vladeck. As for Guantanamo, Vladeck supplied for a recent JustSecurity.org piece a litany of critical cases in which Garland has taken the government’s side on jurisdiction, detainees’ appeals, and their conditions of confinement.

Moreover, Vladeck wrote, “Judge Garland was the one Democratic appointee not to dissent” from a D.C. Circuit opinion “which held that detainees had no right to notice or a hearing before being transferred to countries in which they might credibly fear torture or other forms of cruel, inhuman, or degrading treatment.”

According to New York Times writer Charlie Savage, who has been dissecting Garland’s time adjudicating appeals for Gitmo detainees, from 2010 to 2012, the “appeals court systematically turned back habeas corpus cases brought by detainees, instructing lower-court judges to use more government-friendly standards for interpreting ambiguous evidence,” Savage wrote.

“Judge Garland was not on the panels that developed the early key precedents, but he embraced and applied them without objection.”

One example has been particularly troubling for civil libertarians: in a 2011 case, Garland wrote an opinion “upholding the detention of an Afghan based on evidence the government was keeping secret at the time from the detainee’s lawyers.”  

Vladeck points out that one could do worse than Garland if cloning the late Antonin Scalia’s conservative voice on the bench on matters such as Guantanamo and national security is the goal. With the exception of his dissent in Hamdi v. Rumsfeld, in which Scalia wrote the dissent charging that the government could not indefinitely detain an American citizen at Gitmo without criminal charging him or suspending habeas, “his rulings in this area were as ‘pro-government’ (or, at least as anti-detainee) as they come.”

The larger point here, Vladeck adds, is that the Guantanamo cases are a lens into how we might view Garland’s approach to national security cases overall. In other words, don’t expect him to lead a reexamination of the court’s role in government surveillance, the state secrets privilege, or elements of the Patriot Act that the Supreme Court has already supported with broad majorities.

Fein says Garland’s approach to these issues is indicative of his long service for the government, as judges coming from this professional, even ideological, framework, are “creatures of the executive branch.” He expects Garland’s deference to the federal government to spill over to domestic law enforcement, particularly on issues that bolster the “permanent, neverending war.”

Washington Post columnist and criminal justice expert Radley Balko echoed these sentiments on Twitter after the pick pointing out that Scalia was “comparatively good on the 4th and 6th Amendments.”

He then called Garland “just a boring, status quo, baffling pick from a president who allegedly wants criminal justice reform to be part of his legacy.

Nevertheless, George Washington University Law School professor Jeffrey Rosen, also the president of the National Constitution Center, penned a sympathetic profile of Garland, whom he called a longtime friend and “the embodiment of bipartisan judicial restraint,” who “sincerely believes” that a judge “must put aside his personal views or preferences, and follow the law—not make it.”

Rosen allowed, however, that Garland’s career “has been defined by deference to decisions by administrative agencies,” and “rarely voting in favor of criminal defendants’ appeals for their convictions.”

This includes siding with the Drug Enforcement Administration (DEA) in refusing to redefine marijuana as a Schedule I drug with no medical use. In 2013, in Americans for Safe Access v. DEA, in which an injured veteran petitioned the court to make medical marijuana legal, Garland asked, “Don’t we have to defer to the agency? We‘re not scientists. They are.”

However, his record siding with the government isn’t as clear cut as critics might want to make it out to be, Rosen added. For example, as The Huffington Post pointed out in a piece on March 16, Garland wrote a 39-page rejection of the Bush administration’s attempt to make Chinese Uighurs scooped up in the War on Terror and sent to Gitmo, “enemy combatants.”

“It’s hard to conclusively say he’s a pro-detainee or anti-detainee judge,” Raha Wala of Human Rights First, told Jessica Schulberg of The Huffington Post.

Rosen also points out that Garland has been less sympathetic to the government on environmental cases, and is more ambiguous in how he would rule in Second Amendment cases that come before the court.

Despite that, Somin warns that Garland would also be “problematic in the same way as most liberal judges” who favor the government on issues of “federalism, property rights, Second Amendment rights, campaign finance restrictions on freedom of speech, and the like.” Rosen points out, however, when given the opportunity to strike at the heart of Citizens United, the D.C. Circuit, with Garland’s help, instead helped to bolster it, ending individual spending limits to political committees, paving the way for today’s Super PACs.

Somin said he “hastens to add that none of Garland’s positions here are ‘out of the mainstream,’ or prove that he is incompetent or a bad person. They also don’t don’t prove he would be worse than who (Donald) Trump or Hillary Clinton are likely to give us” if the nomination is put off until after the next president is sworn in January.

“That said,” Somin added, “these issues are legitimate concerns about his judicial philosophy that should be taken into consideration in the debate over what to do with this nomination.”

Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter and TAC contributing editor. Follow her on Twitter.



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