Monday, May 3, 2010

Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1])

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]

In previous posts on New York Court Watcher, we looked at Elena Kagan, Diane Wood, and Leah Sears as possible replacements for the retiring Justice John Paul Stevens. (See Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan), April 15, 2010; Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010; Supreme Court: Short List to Replace Stevens (Part 3: Leah Sears), April 26, 2010.) All three are apparently being considered, or have been considered, by President Obama for the Supreme Court appointment.

Beyond these three, several others have been identified repeatedly in published reports as among those who are being seriously considered. And certainly, Obama's short list, even his very serious short list, includes at least a few more names.

One name that is mentioned prominently is Merrick Garland. That shouldn't be surprising. Even a quick examination of this federal appeals judge tells why. [Well, maybe not so quick. We'll do this in 2 posts.]

His resume? First rate. Educated at Harvard, both undergraduate and law. Then clerkships with Judge Henry Friendly at the 2d Circuit Court of Appeals (the federal appeals court that sits in Manhattan) and Justice William Brennan at the Supreme Court.

It would be impressive to clerk for any Judge or Justice on those 2 courts. But William Brennan was perhaps the most influential member of the Court--within the Court--during his tenure, and certainly one of the most influential liberal Justices in the history of the Court.

And Henry Friendly was one of the greatest and most widely admired of all federal judges--on any court, of any ideological or jurisprudential bent. [Then why didn't Friendly make it to the Supreme Court, you ask? Well, for the very same reason that most of the truly great judges don't. Merit is but one factor in appointments. In fact, it's rarely, if ever, the decisive one. Sorry to break it to you. Political and personal considerations have determined most appointments to the Court. Not who's the best. Again, sorry. And, spoiler alert for children, there's no Santa Claus, Easter Bunny, or Wizard of Oz either.]

But returning to Garland, those clerkships are as good as it gets for someone just graduating from law school. [Another BTW: Chief Justice John Roberts had a very similar post-law school experience. He also clerked for Friendly, and then he clerked on the Supreme Court for Chief Justice William Rehnquist.] Following the clerkships, Garland worked at various times as a private lawyer in one of the nation's major law firms, Arnold & Porter, and as a government lawyer in the Department of Justice.

His government positions included several years in the office of the Attorney General in both the Carter and Clinton administrations, and as a federal prosecutor in the District of Columbia. In the Clinton administration, working in the Criminal Division of the the Justice Department, he supervised the Unabomber and Oklahoma City bombing prosecutions.

Garland was appointed to the D.C. Circuit by President Clinton in 1997. In his 13 years on the federal appeals bench, Garland has developed a reputation as a moderate. Somewhat more conservative than liberals in criminal matters. More liberal than conservatives on other issues. A look at some of his judicial opinions seems to confirm that view.

Although Judge Garland has authored nearly 300 opinions as a federal appellate judge--and we (meaning I) won't be outlining all of them in this post--it's possible to get a sense of his judicial priorities and perspectives from a few of his dissenting opinions. Indeed, as is usually true, the dissenting opinions are very revealing.

[The importance of dissenting opinions in discerning a judge's ideological and philosophical views and leanings has been discussed, explored, and applied on this blog, as well as in countless judicial studies. For posts on New York Court Watcher discussing dissents, see Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010; Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues), June 30, 2010.]

Garland has written dissenting opinions--i.e., publicly took exception to his colleagues' decision--in 5 criminal and quasi criminal cases. In every one, he sided with the prosecution.

In Valdes v. U.S. (2007), a police officer repeatedly accepted payment for obtaining license plate information for an undercover FBI agent posing as someone who wanted information for "these f*** people [who] owe me a lot of money." The officer was convicted of receiving an "illegal gratuity." The appeals court reversed on the ground that the officer was not involved in an official action or decision. Garland rejected that technical view of the law. He would have upheld the conviction for the "payoff[s]" as clearly being "public corruption" within the law's intended target.

In U.S. v. Wilson (2001), the appeals court reversed the defendant's enhanced sentence for false identification. According to the majority, the defendant was not engaged in an "extensive" criminal enterprise because that typically required at least 5 participants. Garland argued that the increased sentence was justified, regardless of the number of accomplices, because the defendant's criminal activity was certainly extensive when all the other circumstances were considered.

In U.S. v. Watson (1999), the appeals court reversed a conviction for drug possession with intent to distribute because the prosecutor at trial had inaccurately quoted a witness's testimony. Garland dissented on the ground that the mistake involved only one sentence of a defense witness's testimony, that the defense counsel didn't even bother to correct any possible confusion on redirect, that the prosecutor's mistake was entirely innocent, and that it caused no real prejudice.

In U.S. v Spinner (1998), the appeals court reversed weapons and drug convictions. As for the majority's view that the expert testimony was insufficient in describing the weapon, Garland argued that that was irrelevant since the weapon itself was in evidence for the jury to examine. As for the majority's view that the prosecutor impermissibly presented evidence of the defendant's bad character, Garland noted that the defendant actually introduced the issue by claiming he was a "changed man" who no longer sold drugs.

In U.S. ex rel Totten v. Bombardier Corp (2004), a quasi criminal action against a contractor, under the federal False Claims Act, for delivering defective rail cars to Amtrak, the appeals court held that the government had no claim because Amtrak is not the federal government. Garland viewed the majority's interpretation of the law as overly narrow. He would have upheld the claim against the contractor on the ground that "Amtrak receives billions of dollars in federal funds that it uses to pay contractor[s]."
[A big nota bene here: then-Judge John Roberts--soon to be Chief Justice--wrote the majority opinion against which Judge Garland dissented.]

There's little doubt from these cases that Garland has little use for narrow, technical, overly legalistic interpretations and applications of laws intended to combat fraud, corruption, and drug trafficking.

That's the more conservative, pro-prosecution side of Judge Garland. In the next post we'll look at his dissents in civil cases. In those cases, which involve the rights of workers and other civil entitlements and liberties, he is much more liberal. Indeed, unmistakably so.

[Another big, and related nota bene: by contrast, Chief Justice Roberts record in cases involving workers is not very sympathetic to worker rights. See e.g., GUEST POST: Chief Justice Roberts on Employment Discrimination--Not Often the Worker's Friend, April 30, 2010.]

We'll see in the next post.