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Why Merrick Garland Is the Moderate’s Choice for the Supreme Court

President Obama's nominee, a former prosecutor, has spent his career being careful, persuasive, and collegial.

Chip Somodevilla/Getty Images

Gearing up for a bruising nomination battle in Congress, President Barack Obama on Wednesday nominated centrist jurist Merrick B. Garland to replace Antonin Scalia on the Supreme Court, a month after the conservative justice was found dead at a Texas ranch. Obama announced his decision in the Rose Garden Wednesday morning.

Garland, who is the chief judge on the powerful Court of Appeals for the District of Columbia, is a consummate Washington insider. Personal friends with Chief Justice John Roberts, he attended Harvard College and Law School, held prestigious clerkships at the Supreme Court, and worked in the Justice Department during the Carter and Clinton administrations. While he has a relatively liberal record and would likely side with the liberals on the Court, conservatives have previously praised his cautious, evenhanded opinions, improving the chances that a hostile Republican Senate will confirm Garland less than a year before voters elect a new president. At the very least, it will deprive Republicans of a talking point that Obama’s nominee is too liberal.

There have already been grumblings on the left that Garland is not liberal enough. Despite a solid liberal record on the environment, gun rights, and civil rights, the former prosecutor is seen as being too friendly toward his erstwhile colleagues in criminal justice cases. He is not a person of color or a woman, two strikes against him in a Democratic Party that has increasingly defined itself by identity politics. At 63, he is also a relatively elderly choice for a lifetime appointment. And he has enjoyed a functional, working relationship with conservatives on the D.C. Court of Appeals.

Garland’s life story should be appealing to liberals. As he told reporters in the Rose Garden, his grandparents are of Russian Jewish stock, who fled to America to escape anti-Semitism. Born and raised in Chicago, Garland put himself through law school by tutoring, stocking shoes in a shoe store, and selling his comic book collection.

Garland attended Harvard College, graduating summa cum laude in 1974 with a degree in Social Studies, an interdisciplinary major that covers economics, history, government, sociology, anthropology and philosophy. If confirmed, Garland would become the sixth justice on the Court to have attended Harvard Law (the other three—Sotomayor, Thomas, and Alito—went to Yale). He graduated, magna cum laude, in 1977, after clerking for the outspoken, progressive Supreme Court Justice William J. Brennan Jr. and editing the Harvard Law Review. 

After law school, Garland moved to Washington to serve as special assistant to Benjamin Richard Civiletti, the United States attorney general from 1979 to 1981, in the final years of the Carter administration. He entered the private sector shortly thereafter, joining the prestigious Washington law firm Arnold & Porter, where he worked on antitrust litigation. After less than a decade there, and just a few months after making partner, he walked away from his lucrative job at the firm, taking a 50 percent pay cut to return to public service, where he cracked down on violent crime and corruption as a prosecutor in Washington. As Garland said at his Rose Garden introduction: “As my parents taught me, a life of public service is as much a gift to the person who serves as it is to the people he is serving.”

As a career assistant United States attorney, according to The New York Times, he prosecuted a violent crack ring and did preliminary work in the drug case against D.C. Mayor Marion Barry. He also supervised major national security investigations for Bill Clinton’s Justice Department: the 1995 Oklahoma City bombing, the Unabomber case, and the bombing of the 1996 Olympics in Atlanta. Indeed, his sterling record on counter-terrorism is one of the reasons he is so appealing to Republicans, and so tough to knock. As he said of Oklahoma City in the Rose Garden, “I saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances and instead takes matters into his own hands.”

Clinton appointed him to Court of Appeals for the District of Columbia Circuit in 1997.

On the bench, Garland has avoided taking controversial ideological stances in his opinions. He is certainly not an ideological warrior in the vein of Antonin Scalia. He has supported conservative criminal justice measures, and has disagreed with more overtly liberal colleagues on the D.C. Court of Appeals on the issue, often siding with the government and voting against criminal appeals.

But his reputation for moderation has worked to his advantage. Garland has been able to move more conservative judges to his side on cases like one concerning the Endangered Species Act, in which he argued for the protection of a toad in California. He also figured prominently in a Guantánamo Bay case in which the Bush administration had dubiously labeled a detainee an “enemy combatant” to detain him in Cuba.

On the Supreme Court, Garland is expected to vote with the liberal justices. But his stances on “hot-button issues like abortion or the death penalty” are still murky, SCOTUSblog explains, as the D.C. Court of Appeals rarely takes on culture war cases.

As such, Garland’s some of his most prominent allies come from across the aisle. In 1997, when Clinton first nominated him for the D.C. Court of Appeals, Senator Orrin Hatch, a rock-ribbed Republican from Utah, called Garland “not only a fine nominee, but as good as Republicans can expect from the administration.” In 2010, Hatch said there was “no question” Garland could be confirmed.

It remains to be seen whether his more moderate record will be enough to placate the Republican senators who have publicly vowed to stall any nomination until after the general election in November. Moments after news of his nomination leaked, Republicans expressed opposition, not to Garland in particular, but to the idea of an Obama nominee in general. But Garland is about as close to a consensus nominee as the president could have made.