Merrick Garland


Merrick Brian Garland is an American lawyer and jurist who serves as a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He has served on that court since 1997.
A native of the Chicago area, Garland attended Harvard University for his undergraduate and legal education. After serving as a law clerk to Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit and Justice William J. Brennan, Jr. of the Supreme Court of the United States, he practiced corporate litigation at Arnold & Porter and worked as a federal prosecutor in the United States Department of Justice, where he played a leading role in the investigation and prosecution of the Oklahoma City bombers.
On March 16, 2016, President Barack Obama nominated Garland to serve as an Associate Justice of the Supreme Court to fill the vacancy created by the death of Antonin Scalia. The Senate refused to hold a hearing or vote on this nomination made during the last year of Obama's presidency, with the Republican majority insisting that the next elected President should fill the vacancy. Senate Republicans' refusal to allow the nomination was considered highly controversial. Garland's nomination lasted 293 days and expired on January 3, 2017, at the end of the 114th Congress. The seat Garland was nominated for was eventually filled by Neil Gorsuch, appointed by President Donald Trump.

Early life and education

Merrick Brian Garland was born on November 13, 1952, in Chicago, Illinois. He was raised in the northern suburb of Lincolnwood in the Chicago area. His mother Shirley was a director of volunteer services at Chicago's Council for Jewish Elderly ; his father, Cyril Garland, headed Garland Advertising, a small business run out of the family's home. Born to a Jewish family, Garland was raised in Conservative Judaism. His grandparents left the Russian Empire in the early 20th century, fleeing antisemitic pogroms and seeking a better life for their children in the United States.
Garland attended Niles West High School in Skokie, Illinois, where he was president of the student council, acted in theatrical productions, and was a member of the debate team. He graduated in 1970 as the class valedictorian. Garland was also a Presidential Scholar and National Merit Scholar.
Garland attended Harvard College on a scholarship, graduating as valedictorian with an A.B. degree summa cum laude and Phi Beta Kappa in social studies in 1974. He initially wanted to become a physician, but quickly decided to become a lawyer instead. Garland allied himself with his future boss, Jamie Gorelick, when he was elected the only freshman on a campus-wide committee. During his college summers Garland volunteered as Congressman Abner J. Mikva's speechwriter. After President Carter appointed Mikva to the D.C. Circuit, Mikva would rely on Garland when selecting clerks. At Harvard, Garland wrote news articles and theater reviews for the Harvard Crimson and worked as a Quincy House tutor. Garland wrote his 235-page honors thesis on industrial mergers in Britain in the 1960s.
Garland then attended Harvard Law School, graduating with a J.D. magna cum laude in 1977. During law school, Garland was a member of the Harvard Law Review, serving as an articles editor from 1976 to 1977. As an articles editor, Garland assigned himself to edit a submission by Justice William Joseph Brennan Jr. on the topic of the role of state constitutions in safeguarding individual rights. Garland's correspondence with Brennan ultimately helped him win a clerkship with the justice. Garland ran for president of the Review, but lost to Susan Estrich.
Following graduation, Garland served as a law clerk for Judge Henry J. Friendly of the Court of Appeals for the Second Circuit from 1977 to 1978, and then Justice Brennan of the U.S. Supreme Court from 1978 to 1979.

Department of Justice and private practice

Garland was special assistant to Attorney General Benjamin Civiletti from 1979 to 1981. After the Carter administration ended in 1981, Garland joined the law firm Arnold & Porter as an associate, and was a partner at the firm from 1985 to 1989. While at Arnold & Porter, the white shoe firm founded by Justice Abe Fortas, Garland mostly practiced corporate litigation. In Motor Vehicles Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co. Garland acted as counsel to an insurance company suing to reinstate an unpopular automatic seat belt mandate.
After winning the case in both the D.C. Circuit and the Supreme Court,
Garland would write an eighty-seven page Harvard Law Review article describing the way courts use a heightened "hard look" standard of review and scope of review when an agency chooses deregulation, with increasing focus on the fidelity of the agencies' actions to congressional intent.
In 1985-86, while at Arnold & Porter, Garland was a lecturer in law at Harvard Law School, where he taught antitrust law. He has also published an article in the Yale Law Journal urging a broader application of antitrust immunity to state and local governments.
In 1989, desiring to return to public service and do more trial work, Garland became an Assistant United States Attorney in the U.S. Attorney's Office for the District of Columbia. As a line prosecutor, Garland represented the government in criminal cases ranging from drug trafficking to complex public corruption matters. Garland was one of three principal prosecutors who handled the investigation into Washington, D.C. mayor Marion Barry's possession of cocaine.
Garland then briefly returned to Arnold & Porter, working there from 1992 to 1993. In 1993, Garland joined the new Clinton administration as deputy assistant attorney general in the Criminal Division of the United States Department of Justice. The following year, then-Deputy Attorney General Jamie Gorelick—a key mentor of Garland's—asked Garland to be her principal deputy associate attorney general.
In that role, Garland's responsibilities included the supervision of high-profile domestic-terrorism cases, including the Oklahoma City bombing, Ted Kaczynski, and the Atlanta Olympics bombings.
Garland insisted on being sent to Oklahoma City in the aftermath of that attack to examine the crime scene and oversee the investigation in preparation for the prosecution. He represented the government at the preliminary hearings of the two main defendants, Timothy McVeigh and Terry Nichols. Garland offered to lead the trial team, but could not because he was needed at the Justice Department headquarters. Instead, he helped pick the team and supervised it from Washington, where he was involved in major decisions, including the choice to seek the death penalty for McVeigh and Nichols. Garland won praise for his work on the case from the Republican Governor of Oklahoma, Frank Keating.

D.C. Circuit

Appointment

On September 6, 1995, President Bill Clinton nominated Garland to the U.S. Court of Appeals for the District of Columbia seat vacated by his longtime mentor Abner J. Mikva. Justice Brennan, for whom Garland clerked, recommended Garland for the position in a letter to Clinton. The American Bar Association Standing Committee on the Federal Judiciary unanimously gave Garland a "well-qualified" committee rating, its highest.
On December 1, 1995, Garland received a hearing before the Senate Judiciary Committee. In Senate confirmation hearings Garland said that the Supreme Court justices whom he most admired were Justice Brennan, for whom he clerked, and Chief Justice John Marshall. Garland also expressed admiration for the writing style of Justice Oliver Wendell Holmes, Jr.. Senate Republicans did not then schedule a vote on Garland's confirmation, not because of concerns over Garland's qualifications but because of a dispute over whether to fill the seat.
After winning the November 1996 presidential election, Clinton renominated Garland on January 7, 1997. Garland's confirmation vote came to the floor of the Republican-controlled Senate on March 19, 1997. He was confirmed in a 76–23 vote and received his judicial commission the next day. The majority of Republican senators voted to confirm Garland, including Senators John McCain, Orrin Hatch, Susan Collins, and Jim Inhofe. Senators Mitch McConnell, Chuck Grassley, and Jeff Sessions were among those who voted against Garland. All of the 23 "no" votes came from Republicans, and all were based "on whether there was even a need for an eleventh seat" on the D.C. Circuit.
Garland became Chief Judge of the D.C. Circuit on February 12, 2013. As chief judge, Garland announced in May 2013 that the D.C. Circuit had unanimously decided to provide the public with same-day audio recordings of oral arguments in the court. His seven year term as chief judge ended on February 11, 2020. He continues to serve as an active member of the court.

Notable cases

Garland is considered a judicial moderate and a centrist. Garland has been described by Nina Totenberg and Carrie Johnson of NPR as "a moderate liberal, with a definite pro-prosecution bent in criminal cases". Tom Goldstein, the publisher of SCOTUSblog, wrote in 2010 that "Judge Garland's record demonstrates that he is essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements." Garland has a reputation for collegiality, and his opinions rarely draw a dissent. As of 2016, Garland had written just fifteen dissents in his two decades on the court, fewer than his colleague Judge Brett Kavanaugh, who wrote some 17 dissents over the previous decade.

Administrative and environmental law

Garland has tended to favor deference to regulatory agencies. For example, in In re Aiken County, Garland dissented when the court issued mandamus ordering the Nuclear Regulatory Commission to process the Yucca Mountain nuclear waste repository license. In Americans for Safe Access v. Drug Enforcement Administration, Garland joined a divided court upholding the DEA's classification of marijuana as a Schedule I drug. However, according to Goldstein, in a number of split decisions on environmental law Garland "favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups." In Rancho Viejo, LLC v. Norton, Garland found the arroyo toad was protected by the federal Endangered Species Act. Then-Circuit Judge John Roberts dissented from the denial of rehearing en banc, writing that Congress's interstate commerce power cannot reach "a hapless toad that, for reasons of its own, lives its entire life in California."

Criminal law and whistleblower protection

While on the bench, Garland has shown a tendency to be deferential to the government in criminal cases, siding with prosecutors in ten of the fourteen criminal cases in which he disagreed with a colleague. For example, in United States v. Watson, Garland dissented when the court concluded a prosecutor's closing argument was unduly prejudicial, objecting that a conviction should only be reversed for "the most egregious of these kind of errors." In 2007, Garland dissented when the en banc D.C. Circuit reversed the conviction of a Washington, D.C. police officer who had accepted bribes in an FBI sting operation.
Garland has taken a broad view of whistleblower protection laws, such as the False Claims Act, which creates a private cause of action against those defrauding the federal government. For example, in United States ex rel. Yesudian v. Howard University, Garland wrote for the court in holding that a plaintiff alleging he had been fired by Howard University for whistleblowing could sue under the FCA for retaliation. In United States ex rel. Totten v. Bombardier Corp., Garland dissented when the court, in an opinion written by then-Judge John Roberts, held that the FCA did not apply to false claims submitted to Amtrak because Amtrak is not the government. Roberts justified his narrow reading by citing a book by Circuit Judge Henry Friendly. In dissent, Garland, cited Friendly's book as supporting the use of legislative intent, writing that Roberts was relying on "'canons' of statutory construction, which serve here as 'cannons' of statutory destruction." Garland's dissent, expressing concerns that the court's ruling would impede the government's ability to pursue false claims cases against federal grantees, is credited with sparking the Fraud Enforcement and Recovery Act of 2009, which eliminated the loophole. During confirmation hearings in 2005, Senator Chuck Grassley sharply questioned Roberts on why he hadn't adopted Garland's reading. Roberts replied, "Any time Judge Garland disagrees, you know you're in a difficult area."

National security

During Garland's tenure, the D.C. Circuit has reviewed cases arising from the Guantanamo Bay detention camp. In al Odah v. United States, a panel that included Garland unanimously held that federal courts could not hear challenges from Guantanamo detainees. In July 2011, Garland wrote for the unanimous panel when it rejected Guantanamo detainee Moath Hamza Ahmed al Alawi's petition for habeas corpus. In Parhat v. Gates, Garland wrote for a unanimous panel that overturned the Combatant Status Review Tribunal's determination that a captured Uyghur was an enemy combatant. In Saleh v. Titan Corp., Garland dissented from the court's holding that former Iraqi detainees at Abu Ghraib prison could not sue private military contractors who participated in torture and prisoner abuse. Garland wrote that the suit should be allowed to proceed because "no act of Congress and no judicial precedent" immunized the contractors from tort liability, the Federal Tort Claims Act specifically excludes contractors, and tort liability would not interfere with government operations.

First Amendment

According to Goldstein, Garland has "tended to take a broader view" of First Amendment rights compared to other justices on the Court. In cases involving the Freedom of Information Act and similar provisions related to government transparency, "Judge Garland's rulings reflect a preference for open government." In ACLU v. CIA, Garland wrote for a unanimous panel rejecting the agency's Glomar response and ordering it to process the ACLU's FOIA request regarding targeted killings by CIA drones. In Cause of Action v. FTC, Garland wrote for a unanimous panel overturning the agency's limitation on FOIA fee waivers to large news outlets.
In Lee v. Department of Justice, Garland dissented from the denial of rehearing en banc after the D.C. Circuit affirmed the district court's order holding reporters in contempt of court for refusing to testify about their anonymous sources during the Wen Ho Lee investigation. Garland wrote that the panel had erred in failing to "weigh the public interest in protecting the reporter's sources against the private interest in compelling disclosure" and that this "undermined the Founders' intention to protect the press 'so that it could bare the secrets of government and inform the people.'" In Initiative & Referendum Institute v. U.S. Postal Service, Garland wrote for the court, holding that a U.S. Postal Service regulation banning signature-gathering for petitions at post offices violated the First Amendment. Garland found the regulation to be facially overbroad and not narrowly tailored.
In cases involving campaign finance reform laws, Garland has applied Citizens United v. Federal Election Commission when he believed that he was compelled to do so, but he has not sought to extend its holding. In Wagner v. Federal Election Commission, Garland wrote for the unanimous en banc D.C. Circuit in upholding a prohibition on campaign contributions from federal contractors because of the governmental interest in preventing corruption. In National Association of Manufacturers v. Taylor, Garland wrote for the court in a decision upholding the constitutionality of lobbyist disclosure requirements under the Honest Leadership and Open Government Act. Professor Rick Hasen, an election-law expert, writes that Garland's opinions on election law are characterized by careful application of precedent and indicate that Garland believes in reasonable regulation.
Garland has addressed a number of religious freedom cases while on the D.C. Circuit, although several of these have been decided on procedural grounds. In 2002, Garland joined a unanimous court in ruling for two federal prisoners who were denied the right to consume communion wine. In 2010, Garland wrote the decision for a unanimous court in favor of an Interior Department employee who brought a religious-discrimination claim after the Interior Department refused to allow her to work weekdays rather than Sunday, when she wished to attend church and Bible study.

Second Amendment

In 2007, Garland voted in favor of en banc review of the D.C. Circuit's panel decision in Parker v. District of Columbia invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed 5–4 in an opinion by Justice Scalia. Goldstein commented, "Garland did not take a formal position on the merits of the case" and "even if he had concluded that the statute was constitutional, that view of the case would have conformed" to widespread views under then-existing Supreme Court precedent. Trevor Burrus of the Cato Institute nonetheless wrote that libertarians and conservatives should be concerned about Garland's stance on gun rights.

Other cases

In Alexander v. Daley, Garland joined a decision, rejecting a challenge brought by District of Columbia residents seeking D.C. congressional voting rights.
In Hutchins v. District of Columbia, Garland agreed with four other D.C. Circuit judges that D.C.'s Juvenile Curfew Act of 1995 implicated at least some significant right of minors. He joined parts of a plurality opinion written by Judge Laurence Silberman that upheld the juvenile curfew under intermediate scrutiny and a vagueness challenge. Garland also joined the part of Judge Judith W. Rogers's opinion holding that a fundamental right to intrastate travel exists.

Supreme Court nomination

Garland was considered twice to fill vacated seats on the United States Supreme Court in 2009 and 2010 before finally being nominated in 2016 by President Barack Obama for the seat left vacant by the death of conservative Associate Justice Antonin Scalia.

2009 and 2010 considerations

In 2009, following the announcement by Justice David Souter that he would retire, Garland was considered as one of nine finalists for the post, which ultimately went to Sonia Sotomayor, then a judge of the Second Circuit.
After the April 2010 announcement by Justice John Paul Stevens that he would retire, Garland was again widely seen as a leading contender for a nomination to the Supreme Court of the United States. President Obama interviewed Garland, among others, for the vacancy. In May 2010, Senator Orrin Hatch, Republican of Utah, said he would help Obama if Garland was nominated, calling Garland "a consensus nominee" and predicting that Garland would win Senate confirmation with bipartisan support. Obama nominated Solicitor General of the United States Elena Kagan, who was confirmed in August 2010.

Scalia vacancy and 2016 nomination

On February 13, 2016, Supreme Court Justice Antonin Scalia died. Later that day, Senate Republicans led by Majority Leader Mitch McConnell issued a statement that they would not consider any nominee put forth by Obama, and that a Supreme Court nomination should be left to the next President of the United States. President Obama responded that he intended to "fulfill my constitutional duty to appoint a judge to our highest court," and that there was no "well established tradition" that a president could not fill a Supreme Court vacancy during the U.S. President's last year in office.
In early March 2016, The New York Times reported that Garland was being vetted by the Obama Administration as a potential nominee. A week later, Garland was named as one of three judges on the President's "short list". Obama interviewed all three leading contenders, as well as two others who were being considered: Judge Jane L. Kelly of the U.S. Court of Appeals for the Eighth Circuit and Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia. Soon afterward, Senator Orrin Hatch, President pro tempore of the United States Senate and the most senior Republican Senator, predicted that President Obama would "name someone the liberal Democratic base wants" even though he "could easily name Merrick Garland, who is a fine man." Five days later, on March 16, Obama formally nominated Garland to the then vacant post of Associate Justice of the Supreme Court of the United States.
Senate Republicans refused to consider Garland's nomination, holding "no hearings, no votes, no action whatsoever" on the nomination. The refusal was highly controversial, with some commentators saying the seat on the Court to which Garland was nominated was "stolen". Over 170,000 people signed a White House petition asking President Obama to independently appoint Garland to the Supreme Court, arguing that the Senate had waived its advise and consent role. On November 17, U.S. District Judge Rudolph Contreras threw out a lawsuit against Senator McConnell seeking to compel a vote on the nomination, finding that the plaintiff, who had simply alleged he was a voter, had no standing to sue.
Garland had more federal judicial experience than any other Supreme Court nominee in history, and was the oldest Supreme Court nominee since Lewis F. Powell, Jr. in 1971. The American Bar Association Standing Committee on the Federal Judiciary unanimously rated Garland "well-qualified" to sit on the Supreme Court.
After a period of 293 days, Garland's nomination expired on January 3, 2017 at the end of the 114th Congress. On January 31, 2017, President Donald Trump nominated Neil Gorsuch to fill the Court vacancy. On April 7, 2017, the Senate confirmed Gorsuch's nomination to the Supreme Court.

Memberships and committee service

Garland served as co-chair of the administrative law section of the District of Columbia Bar from 1991 to 1994. He is also a member of the American Law Institute.
In 2003, Garland was elected to the Harvard Board of Overseers, completing the unexpired term of Deval Patrick, who had stepped down from the board. Garland served as president of the overseers for 2009–10.

Personal life

Garland and his wife, Lynn, have been married since 1987. Lynn Garland's grandfather, Samuel Irving Rosenman, was a justice of the New York Supreme Court and a special counsel to Presidents Franklin D. Roosevelt and Harry S. Truman. Garland and his wife have two daughters, Rebecca and Jessica; both are graduates of Yale University. He is a second cousin of six-term Iowa Governor Terry Branstad.
Garland is a resident of Bethesda, Maryland. Financial disclosure forms in 2016 indicated that Garland's net worth at the time was between $6 million and $23 million. Garland is partially colorblind so he uses a list to match his suits and ties.

Selected publications

  • Merrick B. Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 486 .
  • ———, Antitrust and Federalism: A Response to Professor Wiley, 96 Yale L.J. 1291 .
  • ———, Deregulation and Judicial Review, 98 Harv. L. Rev. 505 .
  • ———, Courts Give Deregulatory Policies New Hard Look, Legal Times, April 22, 1985.
  • ——— & Robert Pitofsky, Federal Trade Commission Investigations, 4 Antitrust Counseling and Litigation Techniques, Ch. 48.
  • James F. Fitzpatrick & Merrick Garland, The Court, 'Veto' and Airbags, The New York Times, August 20, 1983, at 21.
  • Student Note, Commercial Speech, Supreme Court, 1975 Term, 90 Harv. L. Rev. 142.
  • Student Note, State Action Exemption and Antitrust Enforcement Under the Federal Trade Commission Act, 89 Harv. L. Rev. 715 .
  • Student Writer, , 1972-73.