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D.C. Circuit Judge Merrick Garland to be Nominated to Supreme Court

Chief Judge Merrick Garland, of the U.S. Court of Appeals for the District of Columbia Circuit, during judge Christopher "Casey" Cooper's official investiture ceremony.  July 11, 2014.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
Chief Judge Merrick Garland, of the U.S. Court of Appeals for the District of Columbia Circuit, during judge Christopher “Casey” Cooper’s official investiture ceremony. July 11, 2014. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

By Zoe Tillman, From The National Law Journal

Obama picks longtime judge, former prosecutor to fill Scalia vacancy.

Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit and a former U.S. Justice Department lawyer who led the investigation of the 1995 Oklahoma City bombing, will be nominated Wednesday to the U.S. Supreme Court, according to a White House official.
In the weeks leading up to the nomination, many observers saw Garland, 63, as a consensus pick for the president—a judge who, despite a long paper trail and tenure on the bench, has kept a low public profile and isn’t known for staking out controversial positions.
His name was mentioned twice before as a potential high-court nominee under Obama for vacancies that ultimately went to justices Sonia Sotomayor and Elena Kagan in 2009 and 2010, respectively. Garland is older, by more than a decade, than several other judges who were considered contenders for Scalia’s seat. Scalia died on Feb. 13 at age 79
An Illinois native, Garland was confirmed to the D.C. Circuit in 1997 with bipartisan support—he was widely praised for his work in Oklahoma City—and is considered a moderate on the bench with a deep prosecutorial resume. The president chose Garland over several other judges, including Sri Srinivasan of the D.C. Circuit and Paul Watford of the Ninth Circuit.
Garland has largely avoided the spotlight since becoming chief judge more than three years ago. He rarely comments in the press and makes few public speaking appearances. He stayed out of the limelight as Republicans tried to block Obama in 2013 from appointing new judges to the D.C. Circuit. His public-facing initiatives have included holding arguments several times a year at D.C.-based law schools.
Garland’s confirmation is far from certain—and could be doomed from the start. Senate Republicans have vowed for weeks to refuse to hold hearings or vote on any high-court nominee during this election year. Obama’s announcement insures that the high court, already a flashpoint in the presidential race, becomes an even greater point of contention.
“They tell you in Washington, that if you want a friend get a dog. Harry Truman said that. That is not true. Get a family,” Garland, who is married with two daughters, said in 2013 at an event at Georgetown University Law Center. “This is a hard place to be. No matter how much honor you have, people will attack you one way or the other. And the principle solace that you get is from your family.”
Law professors, Supreme Court advocates, former judges and Big Law attorneys have urged the Senate to take up the president’s nomination.
Unlike Srinivasan, Garland has never argued in the Supreme Court. But he is connected in another way: as a top feeder judge to the high court. Since joining the D.C. Circuit, Garland has sent more than 40 of his clerks to work for justices across the spectrum, from Chief Justice John Roberts Jr. to Justice Stephen Breyer. Garland himself clerked for Justice William Brennan in 1978 and 1979.
Liberal groups see Garland’s reputation as a moderate as a strength and a weakness. In 1997, when he was nominated to the D.C. Circuit, and in 2010, when he was on the short list for the Supreme Court nomination that ultimately went to Kagan, some liberals complained that Garland was too much a centrist. But that also worked to his favor: He was considered less likely to provoke strong opposition from Republicans.
Garland on campaign finance, firearms
The next appointment to the Supreme Court could give liberals a 5-4 majority, at least temporarily. Observers say a liberal majority on the court could tighten restrictions on firearms and, in the political arena, dial back the influence of money in elections.
Garland wasn’t on the three-judge panel that struck down the District of Columbia’s handgun ban in March 2007. He was among four D.C. Circuit judges that voted, unsuccessfully, for the full court to rehear the case. The Supreme Court in 2008, in an opinion written by Scalia, upheld the D.C. Circuit decision.
Garland wrote the opinion in Wagner v. Federal Election Commission in July 2015 that upheld the ban on campaign contributions by federal contractors.
“Because the concerns that spurred the original bar remain as important today as when the statute was enacted, and because the statute is closely drawn to avoid unnecessary abridgment of associational freedoms, we reject the plaintiffs’ challenge,” Garland wrote.
Garland’s supporters point to his 2008 opinion in Parhat v. Gates as an example of his skill in working with Republican-appointed colleagues to advance progressive principles.

IMAGE:. Merrick Garland. Photo: Diego M. Radzinschi/NLJ

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