US Court of Appeals for the DC Circuit Chief Judge Merrick Garland was an excellent choice by US President Barack Obama for the Supreme Court seat vacated by the recent death of Justice Antonin Scalia, several lawyers and law professors told Business Insider on Wednesday.
But they were not as excited about Garland’s chances of actually being confirmed by the Senate to the nation’s high court.
“I hope the Senate will seriously consider him but I don’t hold out great hope or optimism that that will happen,” Carter Phillips, a Washington DC lawyer who has argued before the Supreme Court more than any other lawyer in private practice, told Business Insider.
“If anybody could, I think he’d probably be the guy because he’s got a great track record. He is a moderate in the scheme of things.”
Phillips said he’s known Garland personally for nearly 40 years — well enough to claim that Garland is a “miserable basketball player.”
“He’d probably be the first one to concede that,” he said.
Phillips added that Garland would undoubtedly be a liberal-leaning vote on the court, but that he’s “completely open minded.”
“For a guy who’s got to stand in front of the podium as much as I do, I can’t imagine anybody that I would enjoy oral arguments in front of more than him,” he said. “He’s got the best judicial temperament of anybody I know.”
Garland, 63, is a graduate of Harvard Law School and was appointed to his current court by former President Bill Clinton.
This is not the first time Garland was considered for a Supreme Court seat. In 2010, he was in consideration for the seat for which Obama eventually nominated Justice Sonia Sotomayor.
Back then his name earned more sympathy from Republicans, including Sen. Orrin Hatch of Utah, who told Reuters in 2010 that Garland was “a consensus nominee” who would have no problem being confirmed.
“He would be very well supported by all sides” as a Supreme Court nominee, Hatch said, “and the president knows that.”
Adam Winkler, a constitutional law professor at UCLA, told Business Insider that Garland is an “excellent” compromise choice for the vacancy.
“He is a judge’s judge, known for applying precedent not his personal preferences to decide cases,” he said in an email.
Garland was previously considered for two Supreme Court vacancies in Obama’s first term, but was passed up twice for Justice Sonia Sotomayor and Justice Elena Kagan. As the New York Times reported at the time, Obama decided that Garland could be a good pick should a spot on the court open up in a Republican-controlled Senate.
Though he is seen by court-watchers as a centrist or center-left judge, he has also been known to swing to the right on criminal law issues.
Garland headed up the investigations into the 1995 Oklahoma City bombing while serving in the Justice Department during Clinton’s administration, and apparently did not object to seeking the death penalty for convicted bombers, The New York Times has reported.
David Pozen, an associate professor of law at Columbia University and a former clerk of Garland’s who worked for the judge from 2008-2009, said he was “delighted” when he found out the news of Garland’s nomination. He added that he’d be a “fantastic justice.”
But, like Phillips, he wasn’t as certain of Garland’s chances of confirmation
“It’s hard to say,” he said. “He’s not a liberal analogue to Justice Scalia, he’s not a flamethrower. He doesn’t favour grand pronouncements, but he might be a real consensus builder on the court because he’s so careful and so widely respected.”
He said the confirmation hearing depends on how the public reacts to the “stonewalling” from the GOP-controlled Senate, in addition to the progression of the 2016 election.
“I think it’s very possible that Senate Republicans will yield if there’s sufficient public demand,” he said. “I really don’t know.”
In his Wednesday speech from the Rose Garden, Obama continued to apply pressure to Senate Republicans to hold a hearing for a nominee as “qualified and respected” as Garland.
“To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up-or-down vote to join an institution as important as our Supreme Court when two-thirds of Americans believe otherwise, that would be unprecedented,” he said. “To suggest that someone who has served his country with honour and dignity … might be treated as one Republican leader stated as a ‘political piñata,’ that can’t be right.”
“It would be a betrayal of our best traditions and a betrayal of the vision of our founding documents,” he added.
Moments after Obama wrapped up his speech and Garland expressed his gratitude for the tap, Senate Majority Leader Mitch McConnell insisted his party wouldn’t be holding a hearing for Garland because of “principle” and not because of “the person.”
“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said Wednesday. “The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”
Fellow GOP Sen. Pat Toomey of Pennsylvania — who is up for election — tweeted a similar thought shortly after.
“Should Merrick Garland be nominated again by the next president, I would be happy to carefully consider his nomination… #SCOTUS”
Democratic leaders in addition to Obama, such as Senate Minority Leader Harry Reid of Nevada, have pledged to pressure the Republican wing of the Senate to hold a hearing.
Phillips said he doesn’t envy what Garland will have to endure over the upcoming months as partisan politics out of his control will inevitably decide whether he does or does not have a confirmation hearing.
“I hope this is not the most miserable 18 months of his life,” he said. “But, I can’t imagine anything worse than having to get ready for a hearing that you might not actually have that basically covers your entire professional life and all of your views under the sun.
“What could be worse than that, then find out you’re actually not going to get a chance,” he continued. “So we’ll see how that plays out.”
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