After the listening to the political rhetoric from the presidential candidate field, it is at times difficult to be tantalized by the phrase “political moderate.” With promises of political revolutions for all, moderates just seem so, well, boring. There were probably several groans when President Obama announced his nominee for the Supreme Court this morning and the headline “Merrick Garland: Moderate Justice” jumped out from the Facebook feed. But despite any initial skepticism, Garland’s nomination is something to get excited about.
Merrick Garland is not just a Supreme Court nominee; he is the perfect challenge to the Republican Party in Congress. After his almost-nomination that Elena Kagan secured in 2010, I have been following Garland a bit more closely. While his administrative based court has revealed little about his stance on abortion or other presently simmering Supreme Court cases, his positions and opinion on several other matters illustrates a candidate that is a consistent moderate liberal and a qualified nominee with an impressive track record for pulling in Republican and Democrat votes for his past nominations.
Let’s first look at some of his opinions and rulings on detainees and constitutional claims, environmental law, and gun control. In Parhat v Gates (2008), Judge Garland authored an eloquent, 39 page opinion that invalidated a combatant status review tribunal’s determination of Guantanamo detainees as “enemy combatants.” In rendering this opinion he asserted that the detainees involved in this matter could not be denied access to the United States legal system. The following year he dissented from a panel opinion that dismisses detainees’ claims against contractors at Abu Ghraib.
In terms of environmental law, Judge Garland has aligned with challenges brought by environmental groups. In American Corn Growers Association v U.S. Environmental Protection Agency (2002), Garland dissented from the majority opinion that upheld industry challenges to anti-haze regulations. He continued this trend in 2005 in National Parks Conservation Association v. Manson when he joined a panel opinion that agreed environmental organizations had standing to challenge authorization for placement a power plant. Two year later he rejected a coal industry challenge to the regulation of burning hazardous waste materials.
Perhaps the most recent and oft cited (at least of late) action of Judge Garland is his 2007 vote to rehear a case on a preventive handgun ban that was struck down in the D.C. Circuit Court. While Garland and fellow judges’ votes were unsuccessful, the case worked through the courts until being argued in the U.S. Supreme Court, where Garland’s potential predecessor Justice Antonin Scalia wrote the opinion that upheld the ban.
Now even with these left leaning victories, Judge Garland still maintains an apt label of “moderate” by straying from the aforementioned trends if they contradict from his interpretation of the law. He is defined by Scotus Blog as being “not easily categorized” as his rulings are often dependent on facts of the case and not general political trends. While that sounds less than ideal in a political arena that careens both far left and far right, it is ideal for a justice. Cases and rulings should not be parsed out with a predetermined lens but rather meticulously dissected and subject to challenging political trends if the legal interpretation is upheld.
Judge Garland is perhaps the best nominee to encapsulate that political challenge- not just in his rulings, but also as a nominee. Judge Garland’s confirmation to the District of Columbia Circuit Court in 1997 occurred in a Republican-controlled Senate after a 19-month stall. His 76-23 vote was a bi-partisan surprise, with 31 of the confirming votes coming from Republicans. As for the 23 “nay” votes? Those came from Republicans who unanimously stated were based on “whether there was even a need for an eleventh seat” on the circuit, not Judge Garland’s character or past cases.
And that is perhaps what makes this nomination such an exciting one to experience. In a Congress that already has promised to deny consideration for a new justice, President Obama has not only pushed ahead but offered up a nominee who has successfully challenged past Republican opposition and even won the support of Republicans. With President Obama and Judge Merrick Garland standing firm and backed by precedence, they will sending a clear message to the Republicans in Congress as well as audiences at home: The bipartisan ball is in their court.