Save for his age, Judge Merrick Garland seems to fit the mold for a contemporary Supreme Court nominee.
Garland, who is married to a fellow Harvard College graduate and is the father of two daughters who attended Yale, mirrors a high court on which every justice attended an Ivy League university either as an undergraduate or for law school.
The outdoors-loving, 63-year-old Illinois native has been a lifelong high achiever, epitomized early on by his selection as a National Merit Scholar when he was in high school in Skokie. Like four of the high court’s current justices, he’s a Harvard Law School graduate. Like three of them, he once clerked at the court. He’s Jewish, as are three of the court’s four Democratic nominees; the remainder of the court is Roman Catholic.
And, like all of his potential future colleagues, Garland lacks any direct experience with elected office, though that could have turned out otherwise.
“I come from the land of Lincoln . . . and so my first desire was, maybe I thought I’d like to be a politician like Abraham Lincoln,” Garland told a law school panel two years ago.
Garland has even known the friction from political tug-of-war, something he’ll feel again as President Barack Obama’s nominee to fill the vacancy left by the death of Justice Antonin Scalia. Senate Republicans made Garland wait 18 months before confirming him to his current job.
But Garland is a distinct choice, in several ways. As chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, on which he has served since 1997, Garland would bring to the Supreme Court a remarkably long record on the bench.
“He has more judicial experience than any nominee since Oliver Wendell Holmes,” said White House Counsel W. Neil Eggleston.
Holmes was 61 when appointed in 1902; he went on to serve for more than 29 years.
Garland is also older than any of the current justices were when they were nominated; six of them were in their 40s or 50s when tapped for the court. While Garland has been considered for past Supreme Court openings, his selection now bends the general rule that presidents favor younger nominees who can shape the law for decades to come.
No matter how much honor you have, people will attack you, one way or another.
Judge Merrick Garland, in 2013
As a white man, moreover, Garland’s selection surprises those who thought Obama would explicitly rally certain constituencies with an ethnic minority or female candidate. Instead, Garland’s selection puts Republicans in a different kind of bind, as seven still-sitting GOP senators previously voted for him.
“His intelligence and his scholarship cannot be questioned,” Republican Sen. Orrin Hatch said during Senate debate on March 19, 1997, adding that “his legal experience is equally impressive.”
During the time he was growing up in Illinois, Garland’s mother was a community volunteer and his father ran a small business out of their home. He earned a scholarship to Harvard, from which he graduated summa cum laude.
“He put himself through Harvard Law School by working as a tutor, by stocking shoes in a shoe store and, in what is always a painful moment for any young man, by selling his comic book collection,” Obama said Wednesday.
A former Justice Department official, Garland oversaw the prosecution of the Unabomber and Oklahoma City bombing cases in the 1990s, saying Wednesday that the latter work showed him “the devastation that can happen when someone abandons the justice system.”
“He was always there to remind us to do what was right and just,” said attorney Beth Wilkinson, who prosecuted the Oklahoma City bombers. “It wasn’t just words for him. He always figured out how to vigorously prosecute the case, honor the victims and give each defendant a fair trial.”
Appointed by President Bill Clinton and eventually confirmed by the Senate on a 76-23 vote, Garland has amassed what in some ways is a centrist record, sympathetic to law-and-order causes.
“Garland is a moderate, careful jurist with a broad, bipartisan array of admirers,” said Deborah Pearlstein, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University in New York. “He’s unassailably qualified, and at the same time a strategically clever choice.”
In recent months, for instance, he has written opinions upholding a Federal Election Commission complaint against former Idaho Republican Sen. Larry Craig. He has on multiple occasions rejected habeas corpus petitions from Guantánamo Bay detainees, and he joined a unanimous three-judge panel that rejected a Freedom of Information Act request for the Osama bin Laden death photos.
In a similarly deferential vein, Garland in January 2014 joined another unanimous three-judge panel in upholding genital searches of Guantánamo Bay detainees prior to their meetings with defense attorneys.
As a judge, Garland at times has dissented from support for some law enforcement positions. His occasional dissents, as well as his controlling opinions, tend to be written directly and without ornamentation, though they can also show flashes of wit.
“A guy walks into a bar,” he began one 2007 dissent.
Garland can also press government attorneys persistently during oral argument, and his decisions have sometimes pleased civil libertarians. In a March 2013 opinion, for instance, he rejected the CIA’s refusal to even acknowledge whether it had documents about lethal drone strikes.
“As it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject,” Garland wrote.
Conservatives adamantly opposed to any Obama nominee seize on a 2007 vote Garland cast to have the entire D.C. Circuit reconsider a three-judge panel’s decision striking down Washington, D.C.’s strict handgun ban. Though Garland’s losing vote was not on the merits, and the full circuit didn’t hear the case, gun rights advocates say he tipped his hand as being insufficiently supportive of the Second Amendment.
Among judicial professionals, though, the high regard for Garland is both widespread and expressed in myriad ways. From 2009 to 2013, for instance, Garland tied for first place among all federal judges sending clerks to the pinnacle of a Supreme Court clerkship, according to a tally by the Above the Law blog.
“Life throws unexpected things at you,” Garland told the law school audience in 2013. “Had I planned this out in some way, I probably would have ended in some completely different place.”