Merrick Garland raises prospect of a centrist Supreme Court

Supreme Court nominee Merrick Garland faces an uphill fight. If he can manage it, he might make the court less rigidly partisan, some say.

With the most prized United States Supreme Court vacancy in a generation hanging in the balance, President Obama announced his nominee to fill it – a moderate, veteran federal judge – on Wednesday morning.

Whether Merrick Garland, chief judge of the D.C. Circuit Court of Appeals, gets to fill that vacancy remains unclear. On Wednesday, two Republican members of the Senate Judiciary Committee, Orrin Hatch and Jeff Flake, said that Chief Judge Garland might get a hearing during the lame-duck session of Congress after the election.

That offers the nominee some hope, even as he faces potentially one of the longest and toughest confirmation processes in history. If he manages to make it through, he could have a significant effect on the court. 

Since the unexpected death of conservative stalwart Justice Antonin Scalia, legal experts have said the next justice could help define the ideological identity of the nation’s highest court for the next generation.

If Garland is appointed – which remains a big if, given Republican senators’ vow not to hold hearings – his track record as a centrist suggests that the court may not shift radically to the left, as conservatives may fear, or maintain the center-right position it has held in recent decades.

Instead, experts say Garland could become another moderate "swing vote" like Justice Anthony Kennedy, a shift that could see the court become much more malleable based on the individual cases it's deciding.

"I still think the court would live at the center," writes Stephen Vladeck, a professor at the American University Washington College of Law and a Supreme Court expert, in an e-mail to the Monitor, "but perhaps with a more diverse set of coalitions in different cases than over the past decade, where it was almost always Justice Kennedy whose vote drove the outcome." 

Professor Vladeck writes that Garland’s impact would likely "be very specific to the subject-matter in question."

Garland would certainly shift the court to the left on most social issues, experts say, but he may be more conservative on criminal justice issues.

SCOTUSblog's Tom Goldstein wrote that Garland "rarely votes in favor of criminal defendants’ appeals of their convictions."

If he were confirmed, Garland and Kennedy "would become the most-watched justices on the court. As they go, so goes the court," Timothy O'Neill, a professor at the John Marshall Law School in Chicago, writes in an e-mail to the Monitor.

And given the absence of Justice Scalia, who was among the most prominent conservative voices in court history, even a slightly ambiguous shift would be significant.

"Even a modest liberal will make a sea change in the court compared to one with Justice Scalia," writes Jay Wexler, a professor at the Boston University Law School, in an e-mail.

Garland began his career clerking for Justice William Brennan, a liberal stalwart of the court, before moving onto private firm Arnold & Porter. After making partner, he left the firm to become a federal prosecutor, eventually rising to direct the investigation and prosecution of the Oklahoma City bombers and Unabomber Ted Kaczynski in the 1990s. 

He was confirmed to the D.C. Circuit on a 76-to-23 vote in 1997, with 32 Republicans senators voting for him, including seven who are still in the chamber.

In his remarks in the Rose Garden Wednesday, Garland choked up as he spoke about how his experience with the Oklahoma City bombings continues to guide his judicial philosophy today.

"I saw up close the devastation that can happen when someone abandons the justice system as a way of absolving grievances and instead takes matters into his own hands," he said, referring to the bomber, Timothy McVeigh, who carried out the attacks in protest of government overreach.

"[A judge] must put aside his personal views and preferences and follow law, not make it," he added. "Fidelity to the Constitution and the law has been the cornerstone of my professional life, and is the hallmark of the kind of judge I have tried to be for past 18 years. If the Senate sees fit to confirm me ... I promise to continue on that course."

Having served on the D.C. Circuit for 19 years, and as chief judge for three years, Garland has more federal judicial experience than any Supreme Court nominee in history. SCOTUSblog's Tom Goldstein wrote in 2010 that his time on the bench shows that he "is essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements."

With the implications for American constitutional law – particularly on hot-button issues such as campaign finance, affirmative action, and religious freedom – so significant, the political machines of both sides of the aisle have gone into overdrive. Both the Republican and Democratic parties began planning multimillion-dollar campaigns around the nomination weeks before any nominee was announced.

While Professor Wexler doubts Garland will get appointed, he adds that the judge would "become a fairly reliable liberal vote in most kinds of cases."

"Although Garland's voice might not be strikingly liberal, his votes likely will be," he adds.

The significance of that fact has not escaped Senate majority leader Mitch McConnell, who in a statement released shortly after Mr. Obama's announcement maintained his pledge to not hold a hearing for any nominee named by the current president.

"The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction," he said in the statement. "It is a President's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a President and withhold its consent."

On Wednesday, five Republican senators, including Sens. Jeff Flake of Arizona, who sits on the Senate Judiciary Committee, and Susan Collins of Maine, agreed to meet with Garland.

In a political climate as heated as this, Garland may be Obama’s best chance of filling the vacancy before he leaves office. 

"Based on his age, his prosecutorial and lengthy judicial experience, his centrism, and his other characteristics, Chief Judge Garland is a nominee who simply cannot be opposed on the merits," writes Vladeck.

"If President Obama had any shot at a nominee being confirmed before November, Garland is about as strong a candidate as he could have put forward," he adds.