I recently asserted that any of the four people on the list initially leaked by the White House would be an excellent nominee to succeed retiring Justice John Paul Stevens. (See "An Excellent Supreme Court Shortlist," 4/10/10, p. 15.) Now I’d like to argue that the wisest choice would be Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.
I hasten to add that the consensus that Garland would be the least controversial, most easily confirmed nominee is the least of my reasons for praising him.
Nor is my personal relationship with Garland a substantial factor, although full disclosure is in order: We became friendly in law school, working together on the law review in the mid-1970s. We had dinner at each other’s homes years ago and, more recently, have met for lunch once or twice a year. He invited my wife and me, among many others, to his chambers to watch President Obama’s inauguration. Garland has been guarded about his views, and I know nothing about them beyond the public record. But I can testify — as can many others — that he is about as fair-minded, judicious, and straight as a straight-arrow can be.
To be sure, ranking Garland and the three other shortlisters — all people of outstanding integrity and intellect — is a close call.
Solicitor General Elena Kagan, the early betting favorite, would bring youth (she is 49; Garland is 57), charm, and substantial conservative as well as liberal support. The former Harvard Law School dean is unencumbered by much of a paper trail — her views on almost all of the big issues are unknown — or by as much real-world experience as the others.
If the president wants an unalloyed, intellectually meticulous liberal, 59-year-old federal Appeals Court Judge Diane Wood of Chicago would fill the bill. (So would Garland’s admirable D.C. Circuit colleague David Tatel, were he not considered too old, at 68, to serve for more than a decade or two.)
If Obama wants to add broad experience in politics and government, plus geographical diversity, to a Court now made up of nine former federal Appeals Court judges mostly from Harvard and Yale law schools, 52-year-old Homeland Security Secretary Janet Napolitano — a former Arizona governor — would be best.
But the president could do no better than Garland if he wants a moderate liberal universally seen as a paragon of fairness, open-mindedness, and collegiality, with broad experience as a high-level Justice Department troubleshooter, as a prosecutor who showed extraordinary empathy for victims, and as a corporate litigator.
"He is also the most effective person I’ve ever known at persuading people to his point of view."
Some liberals worry that accolades from such conservatives as Sen. Orrin Hatch, R-Utah (not to mention from me and other centrists) must mean that Garland leans to the right.
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.
Garland has sometimes disappointed liberals with rulings that he said he regretted as unjust but compelled by law, notably a logically unassailable 2000 decision that nothing in the Constitution empowered his court to give D.C. residents voting representation in Congress.
But he has also taken on conservatives when he felt that their position was weak on the law. Last September, for example, Garland dissented point-by-point from a ruling by conservative colleagues Laurence Silberman and Brett Kavanaugh that Supreme Court precedent required dismissing a lawsuit filed by Iraqis against U.S. military contractors who had worked at Abu Ghraib prison as interrogators and interpreters. The former prisoners alleged that — as Garland put it — the contractors had "beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused" them.
It’s true that ex-prosecutor Garland’s record — unlike that of Stevens — is relatively pro-prosecution in terrorism cases and criminal proceedings. But Kagan’s history as solicitor general is, if anything, more pro-prosecution. So was Ginsburg’s record during her 13 years on the D.C. Circuit.
"He was born to be a judge," says Jamie Gorelick, who met Garland at Harvard College and made him her top adviser from 1994 to ’97, when she was President Clinton’s deputy attorney general. "He listens. He’s open to all points of view. He’s eminently fair. He is also the most effective person I’ve ever known at persuading people to his point of view."
Not among the most effective. The most effective.
Another superlative, from a D.C. Circuit colleague who declines to speak for attribution: "He’s one of the most skilled judges I’ve ever sat with, and probably the most conscientious."
Garland is also known for beautifully crafted judicial opinions that are models of logic and clarity. Indeed, during his September 2005 confirmation hearing to become chief justice, then-Appellate Judge John Roberts went out of his way to say that "any time Judge Garland disagrees, you know you’re in a difficult area."
Here is a sampling of the uniformly glowing reviews by anonymous lawyers collected by Aspen Publishers’ carefully researched Almanac of the Federal Judiciary: "He is a brilliant man … painstakingly thorough … a judge’s judge … I have never seen him annoyed or petulant … a very good sense of humor … very pleasant … polite … absolutely beloved by those who have worked for him … a man of humility and superb values … not predictable based on ideology at all … very fair … an open mind … intellectual depth … an unusually empathetic man … very much aware of the impact of his decisions on real people … extremely evenhanded."
(Lawyers’ reviews of Judge Wood in the almanac are almost as enthusiastic.)
Some commentators see Garland as too much of the same for a Court with nine former federal Appellate judges; with no member who has ever run for office or served on a state court; and with more than enough Harvard-Yale representation.
But Garland had an unusually rich experience between Harvard and the D.C. Circuit. After clerking in New York for Judge Henry Friendly — perhaps the greatest judge of the 20th century — and then for the very liberal Justice William Brennan, Garland was a special assistant to Attorney General Benjamin Civiletti. After that, he was a corporate litigator at Arnold & Porter, a big Washington law firm, for almost a decade. In 1989, he left his lucrative partnership to become a federal prosecutor in D.C., trying lots of cases. All the while, Gorelick says, Garland’s life has revolved around work, his wife, Lynn, and their two daughters.
As Gorelick’s principal associate deputy attorney general, Garland had a hand in most big Justice Department issues and supervised the Unabomber and Oklahoma City bombing prosecutions. He specifically asked to be sent to Oklahoma City after the 1995 bombing and ran the case for Justice until he had put a trial team in place to prosecute Timothy McVeigh.
"He was unbelievably motivated by the victims," Gorelick recalls. "When the bomb went off in Oklahoma City and they started pulling little children out of that wreckage, he was stricken. He was also moved that people were killed just because they worked for the government. He put his soul into that and spent a lot of time with the families."
President Clinton got Garland onto the D.C. Circuit, after a long Republican stall, in 1997. That court’s docket is heavy with appeals from federal agency rulings, and Garland has had no cases involving abortion, religion, the death penalty, gay rights, or most other ideologically polarizing Supreme Court issues.
Colleagues give him much of the credit for the remarkable paucity of angry splits on a court whose membership includes a leading liberal (Tatel) and strong-minded conservatives such as Chief Judge David Sentelle. Garland is said to be especially effective at finding narrow ways to resolve cases without tackling larger, more divisive controversies.
Among several opinions pleasing to liberals that Garland persuaded conservative colleagues to support was Parhat v. Gates in 2008. Joined by Sentelle and George W. Bush appointee Thomas Griffith, Garland rejected as utterly unsupported by evidence the Bush administration’s claim that Chinese Uighurs imprisoned at Guantanamo Bay were subject to indefinite detention as "enemy combatants."
To be sure, Garland’s consensus-building skills might not work as well on the Supreme Court. The stakes are much higher there, with a steady stream of big cases not clearly governed by precedent. And it’s an uphill battle for any newcomer to influence more-senior justices.
But Garland is as good a bet as anyone to soften the ideological edges of the deeply divided Court and bring a quality too often lacking there. It’s called wisdom.
This article appeared in the Saturday, April 24, 2010 edition of National Journal.