The recent nomination of Judge Merrick Garland to the Supreme Court could greatly change court rulings in a liberal direction.
Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, is a centrist, having voted sometimes conservatively, sometimes liberally.
On the appeals court, he voted for Citizens United, the poisonous big money decision by the Supreme Court that illustrated its reactionary, pro-business, pro-corporation and anti-people rulings.
Garland sided with the government in cases involving habeas corpus petitions from detainees at Guantanamo Bay. He often voted against criminal defendants. He generally deferred to federal agencies.
That is why President Obama nominated him: Garland stands a better chance of being confirmed by a GOP-controlled Senate than an appointee with an ideological bent. He is widely acceptable to Republicans.
(Senate majority leader Mitch McConnell insists there will be no confirmation hearings on Garland. It is doubtful, however, whether the Senate can fail to do its constitutional duty to confirm or deny an appointment.)
Adam Liptak, New York Times Supreme Court reporter, praised Garland as “an able and modest judge” with a “meticulous work ethic and adherence to legal principles.”
He described his legal career as prosecutor and judge as one displaying “fidelity to the Constitution and the law as cornerstones of his professional life.” For instance, he has not objected to the death penalty, calling it “settled law.”
In 19 years on the appeals court he dissented in just 16 cases, seeking rather to persuade the three-judge panels into consensus and unanimity.
He did that well. Justin Driver, University of Chicago law professor, noted: “He has long demonstrated an uncommon ability to find common ground among his fellow judges. That he manages to do so without sacrificing his core judicial principles is remarkable.”
In his appeals court decisions, Judge Garland is often sympathetic to arguments of prosecutors yet he usually sided with unions. He upheld the National Labor Relations Board in 18 of 22 cases where employers committed unfair labor practices.
In a 2012 case he said his appeals court should accept the Drug Enforcement Agency assessment that marijuana is an illegal drug. “Don’t we have to defer to their judgment?” he asked. ”We’re not scientists. They are.” (DEA members are not scientists either.)
But Garland does not always defer to the government. He ruled for the Sierra Club in a case approving the Environmental Protection Agency’s ozone Clean Air Act.
Garland, 63, is a grandson of Jewish immigrants who is a native of Skokie, Ill. Republicans and Democrats describe him as modest, thoughtful and moderate in politics.
Garland graduated from Harvard Law School. While there he edited and wrote articles for The Harvard Law Review.
Perhaps most telling, he served as a clerk for William Brennan, the driving force behind the greatest Supreme Court in history, that of Chief Justice Earl Warren. Supreme Court members today call Garland a leading “feeder judge,” sending more than 40 off his appeals court law clerks to work for the justices.
Garland’s judicial philosophy calls for an independent judiciary. If he proves to be independent, he could be the crucial fifth vote halting the reactionary tide of the Supreme Court led by Chief Justice John Roberts.
Two other Supreme Court appointees of President Obama, Justices Sonia Sotomayor and Elena Kagan, are firm liberals. Liberalism produces a far better court for most people and a much better nation.
Jake Highton is an emeritus journalism professor at the University of Nevada, Reno. (firstname.lastname@example.org)