Merrick Garland

JUDICIAL CRISIS NETWORK & AMERICA RISING SQUARED RESPOND TO PRESIDENT OBAMA NOMINATING MERRICK GARLAND TO U.S. SUPREME COURT profile photo

Washington, DCThe Judicial Crisis Network and America Rising Squared today released the following statements responding to reports that President Obama will nominate DC Circuit Court of Appeals Judge Merrick Garland to the seat of the late Justice Antonin Scalia on the U.S. Supreme Court:

“We are in the middle ofmerrick garland an extremely contentious political season, and the nation is already deeply divided on so many issues. The best thing for the nation is to trust the American people to weigh in on who should make a lifetime appointment that could reshape the Supreme Court for generations. President Obama wants to take that decision away from the American people because he and his allies are committed to pushing the court in an extreme liberal direction, and Judge Garland is a key step in that plan.” – Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network

“Merrick Garland has been called the ideal judge to move the Supreme Court to the left and cement President Obama’s liberal legacy for decades into the future. He was recently considered for an Obama cabinet post and clerked for the court’s liberal icon, Justice William Brennan. At the DC Circuit, Judge Garland’s vote to re-hear a landmark case striking down strict gun restrictions in Washington, DC is deeply concerning to all who care about our Second Amendment right to keep and bear arms.” – Brian Rogers, Executive Director, America Rising Squared

WHO IS MERRICK GARLAND?

TOPLINE POINTS:

  • President Obama wants to move the Supreme Court dramatically to the left to cement his liberal legacy for decades into the future, and Merrick Garland has been called the ideal judge to do that.
  • Judge Garland’s record on the DC Circuit Court of Appeals proves that he would be a reliable fifth vote for a laundry list of extreme liberal priorities, like gutting the Second Amendment, legalizing partial-birth abortion, and unleashing unaccountable bureaucratic agencies like the EPA and the IRS.
  • Judge Garland clerked for the court’s liberal icon, Justice William Brennan, and was reportedly considered for a cabinet post in President Obama’s administration.
  • In multiple cases, Judge Garland has demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms, voting to uphold D.C.’s very restrictive gun restrictions, and siding with the federal government in its plan to retain Americans’ personal information from background checks for firearm purchases.
  • Judge Garland was the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation (the “Haze Rule”) that would have, in the majority’s words, forced businesses “to spend millions of dollars for new technology that will have no appreciable effect” on haze in the area. Garland would have upheld the rule.
  • Judge Garland has a long record of deference to unaccountable government bureaucrats at the Department of Labor, EPA and other agencies whose regulations kill jobs and stifle economic growth.

RESEARCH BRIEFING:

Garland Has Been Called Ideal Obama Nominee To Move Court To The Left And Protect Obama’s Liberal Legacy

The Liberal Center For American Progress’ Think Progress Blog: “On Most Issues, Moreover, It Is Likely That Garland Would Side With The Supreme Court’s Liberal Bloc In Divided Cases.” (Ian Millhiser, “What we Know About The Judges Obama Is Reportedly Vetting For The Supreme Court,” Think Progress, 3/8/16)

National Journal: Garland’s “Overall Record Suggests That When The Supreme Court Splits Along Liberal-Conservative Lines, He Would Usually – If Not Always – Vote With Justices Stephen Breyer, Ruth Bader Ginsburg, And Sonia Sotomayor.” “But Garland is no conservative. His overall record suggests that when the Supreme Court splits along liberal-conservative lines, he would usually – if not always – vote with Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.” (Stuart Taylor, Jr., “Garland Born To Be A Judge,” The National Journal, 4/24/10)

NY Magazine’s John Heilemann: Garland Is Progressive “On Some Of The Most Important Issues Facing The Court – The Environment And Labor Law, To Name Two.” “On some of the most important issues facing the court – the environment and labor law, to name two – Garland is every bit as progressive as Stevens, and much more so than the older judge was when he arrived on the high court.” (John Heilemann, “The President And The Persuader,” New York Magazine, 4/23/10)

NY Magazine’s John Heilemann: Garland A Good Choice To “Protect The Legislative Gains Of His Presidency.” “And Garland’s tendency toward statutory deference … should be seen as a crucial quality by Obama, among whose main goals with this pick must be to protect the legislative gains of his presidency.” (John Heilemann, “The President And The Persuader,” New York Magazine, 4/23/10)

NBC News’ Justice Correspondent Pete Williams: Garland Has “The Right Kind Of Ideology” For President Obama. Williams: “I mean, the thing is now presidents tend to want younger nominees. If you look at the most recent trend, they’re nominating people in their 50s. That’s not Merrick Garland, but he’s the right kind of ideology.” (NBC’s “Meet The Press,” 2/14/16)

Garland Was Reportedly Considered For Cabinet Position In Obama Administration, Clerked For “Legendary Liberal” Justice William Brennan

Garland Was Reportedly Considered For Cabinet Post In President Obama’s Second Term. “Judge Merrick Garland, currently serving on the D.C. Circuit Court of Appeals, is seen as a potential contender for Holder’s job but also could replace Napolitano. Matt Olsen, the director of the National Counterterrorism Center, is seen as a DHS contender as well.” (Edward-Isaac Dovere, “Obama’s Second-Term Cabinet,” Politico, 11/7/12)

Garland Clerked For “Legendary Liberal Champion” Justice William Brennan. “A magna cum laude Harvard Law School graduate, he clerked not just for any Supreme Court justice but for William J. Brennan Jr., the legendary liberal champion.” (Jerry Markon, “Merrick Garland’s been considered for the Supreme Court before. Is this his year?,” The Washington Post, 3/10/16)

In 2007 And 2000 Rulings, Garland Cast Doubt On His Commitment To The Second Amendment

In 2007, Garland Voted In Favor Of A Review Of The D.C. Circuit’s Decision Invalidating The D.C. Handgun Ban, Which The Supreme Court Affirmed. “Garland also notably voted in favor of en banc review of the D.C. Circuit’s decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed.” (Tom Goldstein, “The Potential Nomination Of Merrick Garland,” SCOTUSBlog, 4/26/10)

  • “Among The Judges Who Voted In Favor Of Granting The Petition For Rehearing Were David S. Tatel And Merrick B. Garland, Both Clinton Appointees.” “After losing before the three judge D.C. Circuit panel, the D.C. government petitioned for a rehearing en banc. In other words, the D.C. government asked that the appeal be re-heard by a panel consisting of all the judges on the D.C. Circuit Court of Appeals. On May 8, the D.C. Circuit announced that it had voted 6-4 against granting the petition for rehearing en banc. Among the judges who voted in favor of granting the petition for rehearing were David S. Tatel and Merrick B. Garland, both Clinton appointees.” (Dave Kopel, “D.C.’s Gun Ban: Round 2,” America’s 1st Freedom, July 2007)
  • The Federal Appeals Court “Let Stand A Ruling That Struck Down A Restrictive D.C. Ban On Gun Ownership,” But Garland Voted To Reconsider The Decision. “A federal appeals court in Washington yesterday let stand a ruling that struck down a restrictive D.C. ban on gun ownership, setting the stage for a potentially major constitutional battle over the Second Amendment in the Supreme Court. … [DC Mayor Adrian] Fenty and other officials had asked the full appeals court to review a ruling issued by a three-judge panel that struck down a part of the D.C. law that bars people from keeping handguns in homes. With its 6 to 4 vote to reject a hearing by the full court, the U.S. Court of Appeals for the D.C. Circuit sped up the timetable for a showdown. … Those voting to reconsider were Merrick B. Garland, Judith W. Rogers, David S. Tatel and A. Raymond Randolph.” (Carol D. Leonnig, “Full Court Will Not Review Ruling,” The Washington Post, 5/9/07)

In 2000, Garland Ruled In Favor Of Federal Government Plan To Retain Americans’ Personal Information From Background Checks For Firearm Purchases. “A federal appeals court ruled yesterday that the FBI can hold on to gun purchase records for six months to ensure that a federal computer system that conducts millions of instant criminal background checks is working properly. The 2 to 1 ruling was a defeat for the National Rifle Association, which argued that the practice amounted to an ‘illegal national registration of gun owners.’ The NRA contended that the law requires the FBI to destroy records of approved purchases immediately. … Gun dealers are required to submit information about prospective buyers to the computer system in an effort to prevent sales to convicted felons, fugitives and other disqualified buyers. The information includes the customer’s name, sex, race, date of birth and state of residence. The computer is supposed to immediately generate a response for gun dealers that approves, rejects or postpones the sale for further investigation. … U.S. District Judge James Robertson dismissed the NRA’s lawsuit last year, concluding that the Justice Department acted reasonably in establishing auditing standards. The NRA asked the D.C. Circuit Court of Appeals to overturn Robertson’s ruling. Appellate Judges David S. Tatel and Merrick B. Garland, both Clinton appointees, rejected the NRA’s argument. David B. Sentelle, a Reagan appointee, dissented.” (Bill Miller, “Appeals Court Rules FBI Can Keep Gun Records,” The Washington Post, 7/12/00)

  • “In A 2000 Case, Judge Garland Ruled As Part Of A 2-1 Majority Against The National Rifle Association (NRA) In Its Challenge Of A Justice Department Regulation To Temporarily Retain Information Gathered During Background Checks For Firearms Purchases.” (Ben Conery and Kara Rowland, “Battle Lines Already Forming Over Shortlist To Fill Stevens’ Seat On The Supreme Court,” The Washington Times, 4/22/10)

America’s 1st Freedom Magazine: 2000 Case Signaled Garland’s “Strong Hostility To Gun Owner Rights.” “The Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights in a 2000 case that had challenged the policy of Janet Reno’s Department of Justice of retaining for six months the records of lawful gun buyers from the National Instant Check System. At that time, the Tatel-Garland ruling flouted the 1968 federal law prohibiting federal gun registration, and also flouted the 1994 law that created the National Instant Check System and had ordered that instant check records of law-abiding gun purchasers be destroyed. (Attorney General John Ashcroft later ended Reno’s registration scheme.)” (Dave Kopel, “D.C.’s Gun Ban: Round 2,” America’s 1st Freedom, July 2007)

Garland Dissented In 2002 Case Striking Down EPA Haze Regulations

Garland Dissented From 2002 Ruling That Struck Down EPA Regulations. “The Environmental Protection Agency must rework part of its regulation to cut pollution in national parks and wilderness areas, a federal appeals court said Friday. The EPA rule issued in 1999 requires states to take action to reduce air pollution from power plants and other sources whose emissions drift often hundreds of miles, causing haze and visibility problems in remote areas such as national parks and wilderness. … In a 2-1 decision Friday, a three-judge panel upheld the program’s fundamental goal of the states implementing pollution controls that would return parks and wilderness areas to ‘natural visibility’ over 60 years. But the ruling by the U.S. Court of Appeals for the District of Columbia Circuit said an EPA directive that states must require certain groups of polluters to use the ‘best available technology’ to cut pollution undermines states’ ability to decide how best to address the problem and is against the law. … Judge Merrick Garland filed a dissent, maintaining that the federal Clean Air Act expressly delegates authority to the EPA to make judgments on what steps should be required to reduce pollution. Judges Raymond Randolph and Harry Edwards disagreed.” (F. Josef Hebert, “Court: EPA Must Rework Plan To Cut Pollution In National Parks,” The Associated Press, 5/24/02)

  • Majority Opinion: “Under EPA’s Take On The Statute, It Is Therefore Entirely Possible That A Source May Be Forced To Spend Millions Of Dollars For New Technology That Will Have No Appreciable Effect On The Haze.” “Key provisions of the Environmental Protection Agency’s 1999 regional haze rule are unlawful, a federal appeals court ruled May 24. The rule’s best available retrofit technology (BART) provisions are contrary to the text, structure and history of the Clean Air Act, the U.S. Court of Appeals for the District of Columbia Circuit held in American Corn Growers Assn. v. EPA. … ‘Under EPA’s take on the statute, it is therefore entirely possible that a source may be forced to spend millions of dollars for new technology that will have no appreciable effect on the haze in any Class I area,’ the appeals court said in remanding the rule to EPA.” (Public Power Weekly Website, Accessed 3/15/16)

Garland Has A Long Record Of Deference To Unaccountable Government Bureaucrats At The Department of Labor, EPA And Other Agencies Whose Regulations Kill Jobs And Stifle Economic Growth

SCOTUSBlog’s Tom Goldstein: “Judge Garland Has Strong Views Favoring Deference To Agency Decisionmakers. In A Dozen Close Cases In Which The Court Divided, He Sided With The Agency Every Time.” “Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency every time.  FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009) (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s designation of workers as employees rather than contractors); Northeast Bev. Corp. v. NLRB, 554 F.3d 133 (2009) (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s determination that certain conduct was protected under Section 7 of the NLRA); Financial Planning Ass’n v. SEC, 482 F.3d 481 (2007) (Garland, J., dissenting) (dissenting from panel opinion of Rogers, J., joined by Kavanaugh, J., invalidating SEC rule exempting broker-dealers from Investment Advisor Act in certain circumstances); Alpharma v. Leavitt, 460 F.3d 1 (2006) (per Garland, J.) (upholding FDA determination to approve drug, over partial dissent by Williams, S.J.); Secretary of Labor v. Excel Mining, 334 F.3d 1 (2003) (per Garland, J.) (joined by Rogers, J., upholding citations against mine operator issued by Secretary of Labor; over dissenting opinion of Sentelle, J.); Train v. Veneman, 310 F.3d 747 (2002) (joining opinion of Rogers, J., upholding Secretary of Agriculture’s implementation of subsidy program, over dissent of Sentelle, J.); American Corn Growers Ass’n v. EPA, 291 F.3d 1 (2002) (Garland, J., dissenting in part) (dissenting from majority opinion upholding industry challenge to part of EPA’s anti-haze regulations), after remand Util. Air Reg. Group v. EPA, 471 F.3d 1333 (2006) (Garland, J., on panel upholding regulations); Ross Stores v. NLRB, 234 F.3d 669 (2001) (Garland, J., dissenting in part) (dissenting from panel’s determination to overturn NLRB’s finding that employer unlawfully admonished employee for engaging in union solicitation); NRA v. Reno, 216 F.3d 122 (2000) (joining opinion of Tatel, J., upholding regulations implementing Brady Act; over dissent of Sentelle, J.); Iceland Steamship Co., Ltd. v. U.S. Dep’t of Army, 201 F.3d 451 (2000) (joining opinion of Sentelle, J., to uphold Army Contracting Officer’s decision; over dissent of Henderson, J.); American Trucking Ass’n v. U.S. E.P.A., 195 F.3d 4 (1999) (Tatel, J., dissenting from the denial of rehearing en banc) (Garland, J., joins dissent from denial of rehearing en banc of invalidation of EPA regulations under non-delegation doctrine), rev’d Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001); Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d 1050 (1997) (joining opinion of Silberman, J., upholding interpretation of Social Security Act; over dissent by Sentelle, J.).” (Tom Goldstein, “The Potential Nomination Of Merrick Garland,” SCOTUSBlog, 4/26/10)

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