Star

Mainland 12 Monday, March 21, 2016
The San Juan Daily Star
Where Merrick Garland Stands: A
Close Look at His Judicial Record
By ADAM LIPTAK
Judge Merrick B. Garland, President Obama’s
Supreme Court nominee, has achieved a
rare distinction in a polarized era. He has
sat on a prominent appeals court for almost
two decades, participated in thousands of
cases, and yet earned praise from across the
political spectrum.
A look at a substantial sample of his opinions
starts to supply some answers about
how he managed this unlikely feat. His writings
reflect an able and modest judge with
a limited conception of his role working on a
docket largely lacking in cases on controversial
social issues.
His most charged cases, involving national
security and campaign finance, were as
likely to disappoint liberals as to please them.
He has repeatedly voted against detainees at
Guantánamo Bay, Cuba, and he joined the Citizens
United decision that gave rise to “super
PACs.”
In more run-of-the-mill cases, he was apt
to side with workers claiming employment
discrimination and against criminal defendants
who said their rights had been violated.
Throughout, Judge Garland’s opinions
were models of judicial craftsmanship — unflashy,
methodically reasoned, attentive to
precedent and tightly rooted in the language
of the governing statutes and regulations. He
appears to apply Supreme Court precedents
with punctilious fidelity even if there is reason
to think he would have preferred a different
outcome and even where other judges
might have found room to maneuver.
“He’s been a lower-court judge and acted
like one for these past 19 years,” said Neal K.
Katyal, a former acting United States solicitor
general.
But that also means that Judge Garland’s
opinions provide only glimpses of how he
would vote and write if he overcomes Republican
objections to fill the seat left vacant by
the death of Justice Antonin Scalia.
Judge Garland’s court, the United States
Court of Appeals for the District of Columbia
Circuit, is prestigious but has a limited and
idiosyncratic docket tilting toward administrative
law. The court seldom confronts the volatile
controversies that routinely engage the
justices, like abortion, affirmative action, gay
rights and the death penalty.
The D.C. Circuit does get a steady diet of
cases on efforts to combat terrorism and on
the role of money in politics, and they illustrate
Judge Garland’s moderate, case-by-case
approach.
He has given mixed signals in cases concerning
detainees held at Guantánamo. In
2003, he joined a unanimous three-judge panel
in Al Odah v. United States, which ruled
that men held at the prison could not challenge
their detentions in federal court based on a
1950 Supreme Court precedent. The Supreme
Court later rejected the appeals court’s reasoning.
In 2008, Judge Garland wrote an opinion
for a unanimous three-judge panel concluding
that a military tribunal had wrongly classified
Huzaifa Parhat, a Chinese Uighur, as an enemy
combatant. In the process, Judge Garland
rejected an intelligence assessment.
“The government suggests that several of
the assertions in the intelligence documents
are reliable because they are made in at least
three different documents,” he wrote. “We are
not persuaded. Lewis Carroll notwithstanding,
the fact that the government has ‘said it
thrice’ does not make an allegation true.”
In 2014, Judge Garland joined a decision
upholding a policy at Guantánamo that
allowed guards to probe the genitals of detainees
seeking to meet with their lawyers.
Supreme Court precedent required great deference
to prison officials’ assessments of security
protocols, the court said.
“The new search procedures promote the
safety of the guards and inmates by more
effectively preventing the hoarding of medication
and the smuggling of dangerous contraband,”
the opinion concluded.
In campaign finance cases, too, Judge Garland
followed Supreme Court precedent in
ways that sometimes frustrated liberals and
sometimes cheered them.
He joined a unanimous opinion in SpeechNow.org
v. Federal Election Commission,
a 2010 ruling from a nine-judge panel that
allowed unlimited contributions to “super
PACs,” nominally independent groups that
support political candidates. The logic of the
Supreme Court’s decision in Citizens United
required the move, the appeals court’s opinion
said, transforming the political landscape.
Citizens United concerned only independent
spending by corporations and unions,
not rich people. But it said that there was only
one justification for restricting political spending:
quid pro quo corruption akin to bribery.
It added that independent spending could never
satisfy that standard.
While Judge Garland unhesitatingly extended
Citizens United when he believed its logic
compelled him to do so, he was unwilling to
push further than it required. In July, writing
for a unanimous 11-member panel in Wagner
v. Federal Election Commission, Judge Garland
upheld a ban on campaign contributions
from federal contractors, saying the interest in
preventing corruption that survived Citizens
United warranted the move.
That both cases were unanimous suggests
that the D.C. Circuit works hard to achieve
consensus and confirms findings by political
scientists that ideological voting is less common
on federal appeals courts than on the Supreme
Court.
Judge Garland’s voice is most vivid in his
infrequent dissents. In 2009, for instance, in
Saleh v. Titan Corp., he said the majority had
gone badly astray in barring a suit against
American military contractors by victims of
abuse at the Abu Ghraib prison in Iraq.
“The plaintiffs in these cases allege that
they were beaten, electrocuted, raped, subjected
to attacks by dogs and otherwise abused
by private contractors working as interpreters
and interrogators,” he wrote, adding that both
the Bush and Obama administrations, along
with Congress, “have repeatedly and vociferously
condemned the conduct at Abu Ghraib
as contrary to the values and interests of the
United States.”
The majority, Judge Garland wrote, had
to ignore all of that to fashion “the protective
cloak it has cast over the activities of private
contractors.”
Laurence H. Tribe, a law professor at Harvard,
said Judge Garland’s dissenting opinion
was “particularly admirable.”
“That dissent is a fine example of an opinion
that combines impeccable legal analysis
with a deep sense of humanity,” he said.
Judge Garland served as a law clerk in
1978 and 1979 to Justice William J. Brennan Jr.,
the liberal icon. But there is little in his own
opinions to suggest that he would bring a
similarly strong liberal voice to the Supreme
Court.
Even assuming Judge Garland’s appellate
decisions are a good indication of how he
would vote on the Supreme Court, the key
question is not where he stands in some abstract
sense but where he would fit into the
ideological array on the current court.
President Obama and Judge Merrick B.
Garland in the Rose Garden at the White
House on Wednesday.
Political scientists say the answer is clear.
Judge Garland is well to the left of Justice Anthony
M. Kennedy, the member of the court
at its ideological center and the one who often
holds the controlling vote. A Supreme Court
including Judge Garland would contain a five-member
liberal bloc and put either him or
perhaps Justice Stephen G. Breyer, the most
conservative liberal, in what had been Justice
Kennedy’s pivotal spot.
Not all of the justices’ votes are predictable,
of course, and their alliances can shift. Judge
Garland, a former prosecutor, leans slightly
to the right in criminal cases, for instance. On
the other hand, he appears to be more sensitive
to press freedom than any member of the
current Supreme Court.
In 2005, he dissented from the appeals
court’s decision not to rehear a determination
that several reporters, including one from The
New York Times, could be held in contempt for
refusing to disclose their confidential sources
in an invasion of privacy suit brought against
the government by Wen Ho Lee, an atomic
scientist once suspected of espionage.
The ruling, Judge Garland wrote, would
“routinely succeed in putting reporters who
receive whistle-blower leaks to the choice of
testifying or going to jail.” He said requests
for reporters’ sources should be granted only
if the litigant’s interest in learning the information
outweighed the public interest in protecting
reporters’ access to information.