Politico: Garland Has “Few Seminal Opinions that Capture his Legal Philosophy” and “That May be a Good Thing”

March 17th, 2016

The calculus behind the Garland nomination was far more complicated than we will ever understand, but one attribute of his record will likely make a potential confirmation that much easier. Politico reports that he really doesn’t have any major opinions of jurisprudential note.

Supreme Court nominee Merrick Garland’s nearly two-decade tenure as a judge on the D.C. Circuit Court of Appeals holds few seminal opinions that capture his legal philosophy — and, for those rooting for his confirmation, that may be a good thing. …

During his time on the D.C. Circuit, Garland has established himself as a centrist, consensus-building jurist, who was careful and restrained in his opinions and solidly in the mainstream for Democratic appointees.

From the President’s perspective, this blank slate is viewed as an attribute. Others are not so convinced.

NARAL is skittish because Garland has never ruled on any abortion cases.

Some advocacy groups close to the White House urged the Senate to hold hearings on Garland, in part so they could try to flesh out his outlook.

“Judge Garland does not have a public record on reproductive rights and Senate Republicans’ obstruction denies all of us our right to know where this nominee stands on core constitutional questions of women’s privacy, dignity, and equality,” NARAL Pro-Choice America President Ilyse Hogue said in a statement. “We look forward to learning more about Judge Garland’s views on the constitutional right to abortion and reproductive freedom as this process continues.”

Americans United for Separation of Church and State is worried because Garland has no record on establishment clause cases.

“He does not have a clear record on the issue of the separation of church and state,” said the Rev. Barry W. Lynn, executive director of Americans United. “We hope that more information will be revealed about his positions as he proceeds through the vetting process. What is clear, however, is that Judge Garland deserves consideration from the U.S. Senate.”

In The New York Times, Cheryl Gay Stolberg and Adam Liptak write that Garland was always conscious of his lifelong dream to be a Judge, or a Justice, and lived his life accordingly.

Merrick B. Garland, a Harvard-educated lawyer and classic overachiever, was working in lucrative private practice at Arnold & Porter in the nation’s capital when, in 1989, he was offered a position as a federal prosecutor handling criminal cases here. It meant a 50 percent cut in pay and trading a sumptuous office for one that smelled of stale cigarettes.

He jumped at it.

“I don’t know whether he thought it would be good if he were ever going to become attorney general or a judge,” said Earl Steinberg, a lifelong friend who has known Judge Garland since kindergarten and roomed with him at Harvard. “But he viewed it as an experience he ought to get.”

It was one of a series of carefully considered steps that positioned Judge Garland, now the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to stand in the Rose Garden on Wednesday beside President Obama, who nominated him for a job that friends say he has dreamed of for years: a seat on the United States Supreme Court.

Now, he has a chance to join Justice Kagan on the Supreme Court. To those who know him best, Mr. Obama’s selection was no surprise. As Dr. Steinberg said, “He’s been on a path towards this for a long time.”

The implication–which is not stated overtly–is that Garland ruled in such a restrained manner, lest it ever injure his chances of higher office. Similar comments could be made about the records of both John Roberts and Elena Kagan.
In my piece in the Weekly Standard with Randy Barnett, we discussed the shortfalls of selecting nominees without clear records that illustrate their jurisprudential philosophy, and worry about the so-called “Little Supremes.”

In November 2005, shortly after President Bush nominated Samuel Alito, the New York Observerpublished a timely, and timeless, article about “The Little Supremes.” This cohort of “earnest, platinum-résumé’d law geeks” have their eyes set on “the Big Bench,” so they keep “tidy lives because they think they might someday face a confirmation hearing.” One of the interview subjects recognized that “it is an unfortunate reality today that to be a judge, you cannot hold vehement opinions prior to the nomination and confirmation process. You can’t be opinionated. You can’t hold views and be loud and outspoken about them.” This perverse philosophy needs to be abandoned for the next Supreme Court nomination.

Stanford law professor Pamela Karlan was viewed by many on the left as a dream candidate for the Supreme Court. However, in light of her well-documented record of supporting various hot-button liberal causes, she was never even nominated for the Ninth Circuit Court of Appeals. Karlan was the antithesis of the “Little Supreme.” But did she regret it? Not at all: “Would I like to be on the Supreme Court?” she asked rhetorically. “You bet I would. But not enough to have trimmed my sails for half a lifetime.” We are not suggesting that Karlan should be a Supreme Court nominee, but she exposed the truth about SCOTUS-wannabes who “trim their sails” and limit their potential based on a fear of a future confirmation hearing: Such persons lack the character a justice needs.

Karlan explained this with her characteristic forcefulness: “Courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.” Imagine what it takes to live your whole professional and personal life as a “justice-in waiting.” These SCOTUS-wannabes spend their careers seeking the approval of others, in the hopes that one day they will be nominated because of their friendships across the political spectrum. Then, unimpeded by anything controversial in their records, they can sail through a confirmation hearing. These are the exact sort of people who will be cowed by the Beltway social pressures and the New York Times editorial page. Such willfully “stealth candidates” should be disqualified from consideration for the Supreme Court—the position in Washington most vulnerable to these influences.

When such people become justices, defending the Court as an institution will trump defending the Constitution. They will look to John Marshall, not James Madison, for guidance. Justices take an oath not to the Supreme Court, but to the Constitution. We need jurists who are fearlessly committed to the rule of law, reputation be damned. Former governor and now presidential candidate Jeb Bush, perhaps more than any other candidate, has acknowledged this in recent remarks: “Today in America, the minute you have a record, you’re subject to attack. But that’s the best way to prove that someone has a consistency in their view of, in terms of judicial philosophy.” Bush is exactly right. Paper trails are an asset, not a disqualification.

By all accounts, Garland has a sterling reputation. He is a very well-respected, meticulous, and careful federal judge. Yet it concerns me that in two decades, he has so few decisions of any note. Now part of that is due to the D.C. Circuit’s limited docket. They simply don’t get abortion or religious liberty cases, as do the other Circuits. But even then, there isn’t much to go on to ascertain how he views certain foundational constitutional issues. I tried to read through his highest profile cases yesterday, and frankly, there wasn’t much to go on.
For example, has he ever weighed in on originalism? I think that is a relevant question in light of the fact that he is filling Justice Scalia’s seat.
Update: Noah Feldman makes a similar point:

No Senate staffer will be able to dig up any dirt on Garland, which is good. But no Senate staffer will be able to dig up any non-judicious opinions, either – on any subject. That’s less good. It means that, like Justices Elena Kagan, Sonia Sotomayor, John Roberts, and Samuel Alito, the current nominee has constructed a life under the radar of controversy. That may make him more confirmable, and it may expose the inconsistency of opponents who claim to be champions of judicial restraint. But it still reflects the self-conscious caution of the meritocratic legal elite.

Respectfully, Feldman is correct to include Kagan and Roberts on this list, but Sotomayor and Alito do not. Recall Alito had several prominent decisions involving abortion, religious liberty, and his time at Princeton. Sotomayor had the “Wise Latina” comment, as well as decisions involving the Second Amendment and the Takings Clause, not to mention Ricci v. DeStefano. Kagan and Roberts totally “constructed a life under the radar of controversy.”