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The Nomination of Merrick B. Garland to the United States Supreme Court

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The Nomination of Merrick B. Garland to the United States Supreme Court REPORT ON The Nomination of Merrick B. Garland to the United States Supreme Court WWW.THEGARLANDRECORD.ORG About Alliance for Justice Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. It works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. Through research, advocacy, and public education, AFJ promotes the creation of a diverse judiciary committed to equal justice for all. In addition, AFJ’s Bolder Advocacy initiative is the leading resource on the legal framework for nonprofit advocacy efforts, providing definitive information, resources, and technical assistance that encourages organizations and their funding partners to fully exercise their right to be active participants in the democratic process. For more information on this report, contact AFJ’s Washington headquarters. Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC 20036 202.822.6070 All material within this report is protected by copyright law and may not be reproduced without the express written consent of Alliance for Justice. © 2016 Alliance for Justice Contents EXECUTIVE SUMMARY 3 Introduction 3 Biography 5 Overview of Chief Judge Garland’s Judicial Record and Key Findings 6 Access to Civil Justice 8 Civil Rights 8 Administrative Law 9 National Security and Detainee Rights 11 FOIA 12 Criminal Law 12 Other Constitutional Issues: First Amendment, Second Amendment, Substantive Due Process, and Challenges to Federal Power 14 CHIEF JUDGE GARLAND ON THE ISSUES 17 Access to Civil Justice 17 Justiciability 18 www.TheGarlandRecord.org Statutes of Limitations, Exhaustion, and other Procedural Bars 23 The Right to a Jury Trial 27 Class Actions 30 i Remedies 32 Civil Rights 33 Administrative Law 38 Environment & Public Health 41 Labor Law and Workplace Safety 46 National Security and Detainee Rights 53 Freedom of Information Act (FOIA) 58 Criminal Justice 61 Overall D.C. Circuit Record 62 Fourth Amendment 64 Plea and Trial Errors 68 Sentencing 74 Other Constitutional Issues: First Amendment, Second Amendment, Substantive Due Process, and Challenges to Federal Power 77 Due Process and Commerce Clause Challenges to Federal Power 77 New Constitutional Rights 81 Second Amendment 83 First Amendment 84 APPENDIX A | JUDGE GARLAND’S DISSENTS 93 APPENDIX B | DIVIDED ADMINISTRATIVE LAW CASES 95 APPENDIX C | LABOR LAW MAJORITY OPINIONS AUTHORED BY JUDGE GARLAND 97 APPENDIX D | GUANTANAMO DETAINEE CASES 99 APPENDIX E | DIVIDED CRIMINAL LAW CASES 101 Alliance for Justice ii EXECUTIVE SUMMARY Introduction On February 13, 2016, Associate Supreme Court Justice Antonin Scalia died at the age of 79, creating a vacancy on the Supreme Court. This is the third Supreme Court vacancy to arise during President Barack Obama’s administration, following the retirements of David Souter and John Paul Stevens in 2009 and 2010, respectively. After news broke of Justice Scalia’s death, it took only hours for Senate Republicans to set aside their constitutional obligations and pledge to obstruct any attempt by President Obama to fill the vacancy. But President Obama fulfilled his own constitutional obligations and selected a highly qualified and dedicated public servant as his nominee. On March 16, 2016, President Obama nominated Merrick Garland, Chief Judge of the United States Court of Appeals for the D.C. Circuit, to the Supreme Court. President Obama praised Judge Garland as “one of America’s sharpest legal minds” and “someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence.”1 Judge Garland’s resume is unassailable, and neatly fits the mold of the modern con- www.TheGarlandRecord.org sensus judicial nominee. He is Ivy League educated, clerked on the Supreme Court, has experience both as a corporate lawyer and prosecutor, and, of course, currently sits on the D.C. Circuit. Of the Supreme Court’s eight current justices, three came directly from the D.C. Circuit (as did Justice Scalia), and all but one (Justice Elena 3 Kagan) served on a federal court of appeals. Two justices are former prosecutors, and all eight have an Ivy league education. Only one, Justice Ruth Bader Ginsburg, worked as a lawyer at a public interest organization (the American Civil Liberties Union), and the Supreme Court has not had a justice with significant indigent crimi- nal defense experience since Thurgood Marshall retired in 1991. With such pristine, mainstream credentials, Judge Garland has received bipartisan praise throughout his career. Indeed, some of the very Senate Republicans who have so far refused to hold a confirmation hearing on his nomination have also lauded Judge Garland’s character and qualifications. Senator Orrin Hatch has described Judge Garland as a “consensus nominee”2 and as someone whose “integrity,” “hon- esty,” “legal ability,” and “intelligence” “cannot be questioned.”3 Senator Jeff Sessions has applauded Judge Garland as “a fine person and an able lawyer.”4 1 Remarks By the President Announcing Judge Merrick Garland as His Nominee to the Supreme Court, The White House (Mar. 16, 2016), https://www.whitehouse.gov/the-press-office/2016/03/16/remarks-president-announc- ing-judge-merrick-garland-his-nominee-supreme. 2 Thomas Ferraro, Republican Would Back Garland for Supreme Court, Reuters (May 6, 2010, 7:18 PM), http://www. reuters.com/article/us-usa-court-hatch-idUSTRE6456QY20100506. 3 143 CONG. REC. S2516–17 (daily ed. Mar. 19, 1997) (statement of Sen. Hatch). 4 Id. at S2534 (statement of Sen. Sessions). Yet others who oppose Judge Garland’s nomination have chosen to distort rather than seriously engage with his judicial record.5 They would rather the public see only the record they present in smear campaigns and attack ads, not the record that would emerge in a full, open, and fair confirmation hearing. This report answers such superficial distortions with comprehensive analysis. This Alliance for Justice report evaluates the nomination of Chief Judge Merrick Garland to the Supreme Court. Our goal is to capture who Judge Garland is as a lawyer and a jurist in order to better understand who Judge Garland would be as a justice. After a thorough review of his judicial record, the primary conclusion is that, on the merits, Judge Garland is highly qualified to serve on the Supreme Court, and there is no legitimate basis for the Senate to deny him full and fair consideration. Throughout his judicial career, Judge Garland has demonstrated extraordinary intellect, fairness, humility, and an unwavering commitment to the rule of law. And across issue areas, he has been a model of judicial restraint—strictly adhering to Supreme Court precedent, avoiding sweeping proclamations when a more narrow rationale will suffice, and restricting rulings to only those issues fully briefed and properly presented to the court. Judge Garland’s voluminous writings clearly estab- lish that his approach to deciding cases is not about ideological outcomes, but about rigorous legal analysis, fully accounting for the relevant law and facts in each case. Alliance for Justice Fully assessing Judge Garland is no small task. Judge Garland’s professional career spans almost 40 years, nearly 20 years of which have been spent as a judge on the D.C. Circuit. Combined with his clerkship, law firm, and prosecutorial experience, 4 Judge Garland has an extensive record from which to cull information.6 Our focus is Judge Garland’s record on the D.C. Circuit. Where appropriate, we include referenc- es to some of Judge Garland’s extra-judicial materials, such as law review articles and responses to Questions for the Record from his D.C. Circuit nomination, but the driving force of our evaluation is the cases he has decided. This still leaves a record consisting of hundreds of cases, not all of which may provide valuable insight into Judge Garland’s views or judicial philosophy. Thus, for purposes of this report and except for two issue areas, we did not review cases in which the court issued a unanimous opinion that Judge Garland did not author. (The two exceptions to this are criminal cases and cases dealing with Guantanamo detainees and other national security issues.) This left for review cases in which (1) Judge Garland authored the opinion of the court, unanimous or otherwise; (2) another judge authored the opinion of the court that was not unanimous, mean- ing there was a dissent or concurrence by Judge Garland or another judge; (3) the court issued a per curiam opinion with a separate dissent or concurrence by Judge Garland or another judge; and, (4) the court denied rehearing en banc and one or 5 See Kyle Barry, On the Clean Air Act and the EPA, Justice Scalia Agreed with Judge Garland, Justice Watch Blog (Apr. 21, 2016), http://www.afj.org/blog/on-the-clean-air-act-and-the-epa-justice-scalia-agreed-with-judge-garland. 6 We attempted to access memoranda and other correspondence written by Judge Garland during his 1978–79 Su- preme Court clerkship with Justice William Brennan. These writings are part of the collection of Justice Brennan’s papers kept at the Library of Congress. We were denied access to Judge Garland’s writings, but we were able to examine other papers in the collection from the term Judge Garland clerked on the Court. more judge filed a dissent or concurrence in the denial. This universe of about 450 cases suitably captures Judge Garland’s jurisprudence for three reasons. First, it includes all of Judge Garland’s written opinions, which provide insight into his substantive views, approach to judicial decisionmaking, and temperament. Second, it captures every split decision in which Judge Garland participated.
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