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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court

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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court Andrew Nolan, Coordinator Legislative Attorney Kate M. Manuel, Coordinator Legislative Attorney Brandon J. Murrill, Coordinator Legislative Attorney April 27, 2016 Congressional Research Service 7-5700 www.crs.gov R44479 Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court Summary On March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme Court created by the unexpected death of Justice Antonin Scalia in February. Judge Garland was appointed to the D.C. Circuit by President Clinton in 1997, and is currently its chief judge, an administrative position that rotates among the active judges on the circuit. Prior to his appointment to the bench, Judge Garland served in the Criminal Division of the U.S. Department of Justice, where he notably oversaw the prosecution of the 1995 Oklahoma City bombing case, as well as other cases. It remains to be seen whether or how the Senate might proceed in considering Judge Garland’s nomination; however, the nomination remains effective until it is withdrawn or this term of Congress ends, whichever occurs first. This report provides an overview of Judge Garland’s jurisprudence and discusses what the impact on the Court might be if he, or a judge of a similar judicial approach, were to be confirmed to succeed Justice Scalia. In particular, the report focuses upon those areas of law where Justice Scalia can be seen to have influenced the High Court’s approach to certain issues, or served as a fifth and deciding vote on the Court, with a view toward how Judge Garland might approach those same issues if he were to be confirmed. The report begins with his views on two overarching issues—the role of the judiciary and statutory interpretation. It then addresses 14 separate areas of law, which are arranged in alphabetical order from “administrative law” to “takings.” The report includes one table which notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Garland. Another table, in the appendix to the report, identifies Judge Garland’s colleagues on the D.C. Circuit and lists notable cases involving Judge Garland and that colleague. A separate report is forthcoming that will list all opinions authored by Judge Garland during his tenure on the D.C. Circuit. Other CRS products discuss various issues related to the vacancy on the Supreme Court. For an overview of available products, see CRS Legal Sidebar WSLG1526, Vacancy on the Supreme Court: CRS Products, by Kate M. Manuel and Andrew Nolan. Congressional Research Service Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court Contents Predicting Nominees’ Future Decisions on the Court ..................................................................... 2 Role of the Judiciary ........................................................................................................................ 6 Statutory Interpretation .................................................................................................................. 16 Administrative Law ....................................................................................................................... 23 Capital Punishment ........................................................................................................................ 30 Civil Liability ................................................................................................................................ 31 Civil Rights.................................................................................................................................... 36 Criminal Law and Procedure ......................................................................................................... 37 Environmental Law ....................................................................................................................... 43 Federalism ..................................................................................................................................... 49 Freedom of Religion ...................................................................................................................... 55 Freedom of Speech ........................................................................................................................ 56 International and Foreign Law ...................................................................................................... 62 Right to Bear Arms ........................................................................................................................ 65 Separation of Powers ..................................................................................................................... 66 Substantive Due Process................................................................................................................ 71 Takings .......................................................................................................................................... 73 Tables Table 1. Judge Garland and the Supreme Court ............................................................................. 11 Table A-1. Judges Who Have Served with Judge Garland on the D.C. Circuit............................. 75 Appendixes Appendix. Judge Garland and the D.C. Circuit ............................................................................. 75 Contacts Author Contact Information .......................................................................................................... 78 Congressional Research Service Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court n March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme Court created by the unexpected death of Justice Antonin Scalia in February.1 O 2 Judge Garland was appointed to the D.C. Circuit by President Clinton in 1997, and is currently its chief judge,3 an administrative position that rotates among the active judges on the circuit.4 Prior to his appointment to the bench, Judge Garland served in the Criminal Division of the U.S. Department of Justice (DOJ), where he notably oversaw the prosecution of the 1995 Oklahoma City bombing case,5 as well as other cases.6 It remains to be seen whether or how the Senate might proceed in considering Judge Garland’s nomination;7 however, his nomination remains effective until it is withdrawn or this term of Congress ends, whichever occurs first.8 This report provides an overview of Judge Garland’s jurisprudence and discusses what the impact on the Supreme Court might be if he, or a judge of a similar judicial philosophy, were to be confirmed to succeed Justice Scalia. In attempting to ascertain how the Court’s jurisprudence could be affected if Judge Garland were to fill the vacancy created by Justice Scalia’s death, however, it is important to note at the outset that it is difficult to predict accurately an individual’s service on the Court based on his prior experience for various reasons. Accordingly, a section of this report entitled “Predicting Nominees’ Future Decisions on the Court” provides a broad context and framework for evaluating how determinative a lower court judge’s prior record may be in predicting future votes on the Supreme Court. The report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court’s approach to particular issues, or served as a fifth and deciding vote on the Court,9 with a view toward how Judge Garland might approach that same issue if he were to be confirmed. The report begins with his views on two cross-cutting issues—the role of the judiciary and statutory interpretation. It then addresses 14 separate areas of law, which are arranged in 1 See, e.g., Transcript: Obama Announces Nomination of Merrick Garland to Supreme Court, WASH. POST (March 16, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/03/16/transcript-obama-announces-nomination- of-merrick-garland-to-supreme-court/. See also CRS Legal Sidebar WSLG1518, Merrick Garland’s Nomination to the Supreme Court: Initial Observations, by Andrew Nolan. 2 See Garland, Merrick B., FED. JUDICIAL CTR., http://www.fjc.gov/servlet/nGetInfo?jid=820 (last visited April 15, 2016) [hereinafter “FJC Garland”]. Judge Garland was initially nominated to the D.C. Circuit in 1995, but the Senate did not vote on that nomination. Id. 3 Id. 4 See U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT, HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES, UNITED STATES COURT FOR THE DISTRICT OF COLUMBIA CIRCUIT, AS AMENDED THROUGH MARCH 1, 2016, 2, https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20- %20Handbook%202006%20Rev%202007/$FILE/HandbookMarch2016Final.pdf (last visited April 20, 2016). 5 See, e.g., Confirmation Hearings on Federal Appointments: Hearings before the Committee on the Judiciary, United States Senate, Part 2, 104th Congress, 1st sess., 1058 (1995). 6 FJC Garland, supra note 2. 7 See, e.g., David M. Herszenhorn, Senator Grassley and Judge Garland Meet, and Rehash the Obvious, N.Y. TIMES (April 12, 2016), http://www.nytimes.com/2016/04/13/us/politics/senator-chuck-grassley-merrick-garland-meet.html? _r=0; Todd Ruger, Grassley: I Haven’t
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