Supreme Court: Short List to Replace Stevens (Part 4a: Merrick Garland [2])

Haiti
[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.]
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In the last post on New York Court Watcher, we began our examination of federal appeals Judge Merrick Garland as a possible--indeed very possible--choice of Obama for the Supreme Court. We reviewed his educational and career background prior to his appointment by President Clinton to the U.S. Court of Appeals for the D.C. Circuit in 1997. (See Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1]), May 3, 2010.)

We then took a look at some of his judicial opinions in criminal cases. Specifically, we looked at his dissenting opinions in those cases--i.e., as we've elaborated several times previously, the opinions he wrote in cases where he disagreed strongly enough with the majority of his colleagues that he felt compelled to express his differences publicly. Those particularly revealing opinions showed Garland to be quite tough on criminal defendants.

In each dissent he took a more pro-prosecution position than his colleagues. (This, of course may make him more palatable to Senate Republicans and, thus, make his confirmation, that much easier. More about that later.) To be clear, however, Garland's pro-prosecution positions were disagreements with his colleagues about what he saw as overly technical, narrow and rigid--rather than common sense--interpretations and applications of the law. His disagreements were NOT in the nature of the all too typical nonsense about liberal colleagues being soft on crime, or disregarding society's interests in crime control and safety, or making law to favor the rights of the accused over the victims.

No, not at all. His dissents were always tempered, respectful, thoughtful, and clear that he simply thought the majority got it wrong. Moreover, his dissents do not indicate a willingness to sacrifice due process for crime control. His "law and order" dissents were NOT in the nature of excusing police misconduct in obtaining evidence, illegal government tactics, or any official malfeasance. Rather, they evince little sympathy for overly technical, rigid views of the law that result in excusing indisputably illegal misconduct and corruption.

[So, for example, in U.S. ex rel Totten v. Bombardier Corp (2004), a case discussed in the last post, Garland argued, in dissent (against a majority opinion written by then-Judge John Roberts), that a prosecution for cheating the federal government should be upheld against a private contractor that had sold defective cars to Amtrak, which “receives billions of dollars in federal funds that it uses to pay contractor[s]."
This parenthetical was revised from the original post to illustrate the case that was intended.]

But now, let's turn to the civil cases. First, let's look at the 4 cases involving worker rights in which Garland dissented. In every case, he sided with the worker.
[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.]

In Fed Ex v. NLRB (2009), the appeals court overruled a decision of the National Labor Relations Board (NLRB) that the company committed an unfair labor practice by refusing to collectively bargain with the union representing certain drivers. The court held that the drivers were too independent to be considered employees and, thus, the company did not have to deal with them through their union. Garland argued that there were good reasons for viewing the drivers either way, as employees or independent contractors, and therefore that the ruling of the agency with expertise and responsibility for such matters should control. In short, it was reasonable to view the drivers as employees and to require the company to deal with the drivers' union.

In Northeast Beverage v. NLRB (2009), the appeals court overruled a decision of the NLRB that the employees' walkout was a protected union activity. The court held that the walkout was not part of an ongoing labor dispute--which would have been protected. Garland argued that the NLRB's decision was perfectly reasonable because the walkout was directly related to the company's closing of the drivers' work facility, and the drivers had walked out to get answers about their continued employment. In short, the agency's ruling in favor of the employees should be upheld.

In Ross Stores v. NLRB (2001), the appeals court overruled the NLRB's decision that the company committed an unfair labor practice when it told an employee that union solicitation was not allowed. The majority held that the complaint was filed too late because it was not filed within 6 months. Garland argued that the complaint was "closely related" to a complaint which was timely filed and approved by the court--i.e., the company fired the employee for favoring unionization. Under the law, that makes the dismissed complaint a timely one. In short, the agency's ruling siding with the employee should be upheld.

In Berger v. Iron Workers Reinforced Rodmen, Local 101 (1999), the appeals court reversed the trial court's calculation of back pay for workers who were the victims of racial discrimination in employment. The court held that the back pay should have been less because the calculation of the "benchmark" pay should have taken into account the zero-earnings of employees who did not work. Garland argued that, although the trial court's calculation was different, it was not unreasonable or "clearly erroneous"--and that is the legal standard for review. In short, the ruling of the court below, which was more favorable to the employees, was reasonable and should be upheld.

As with Garland's dissents in criminal cases, the common thread in these cases involving rights of employees is clear. He consistently supported rulings that favored workers as long as they were reasonable--even if a contrary decision might have been more technically, strictly correct. Where it's possible to decide a case either way, Garland has erred on the side of favoring workers.

In these cases, he is much more the liberal that one would expect of someone who worked in both the Carter and Clinton administrations. The same is true for other civil cases in which he dissented: freedom of the press, the public's right to know, environmental protection, and the treatment of detainees.

In Lee v. Dept. Of Justice (2005), the appeals court ordered a newspaper to disclose confidential sources to a plaintiff who was seeking information for his private lawsuit against the government. Garland argued that the public had an overriding interest in protecting the freedom of the press to gather information from confidential sources, and that that interest outweighed a plaintiff's need for information in a private lawsuit.

In McDonnell Douglas v. U.S. Air Force (2004), the appeals court ruled that information about prices paid by the Air Force for maintenance work was not available under the Freedom of Information Act (FOIA). The majority held that release of the information would harm the competitive position of the company that won the bid to do the work. Garland argued that the majority's rule virtually foreclosed the availability of any such information about the prices government pays to private contractors; under FOIA, withholding information should be the exception, not the rule.

In Am. Corn Growers v. Environmental Protection Agency (2002), the appeals court overruled the agency's so-called Haze Rule which required the states to implement regional anti-haze programs to help clear the air in national parks and wilderness areas. The majority held that the agency was infringing on the authority left to the states under the federal Clean Air Act. Garland argued that the EPA's interpretation of the legislation was entirely reasonable and that, given the agency's expertise and responsibility in the area, its interpretation should be deferred to by the court.

In Saleh v. Titan Corp. (2009), the appeals court dismissed lawsuits by Iraqi nationals who alleged abuse at the hands of private military contractors while at Abu Garaib prison. The majority held that the contractors were too closely tied to combat activities of the U.S. military to be subject to ordinary tort liability. Garland dissented on the ground that no one was claiming that the "beat[ings], electrocut[ions], rape[s], attacks by dogs" and other abuses inflicted by the contractors on the plaintiffs were authorized by the U.S. military. In fact, Garland noted, no official of either the current or previous administration has defended the contractors' conduct or suggested it was part of any military function.

It's not too difficult to see a pattern in these dissents. In every one, Judge Garland took the position one would expect of a liberal. Pro-workers' rights, pro-free press, pro-freedom of information, pro-environment, and pro-humane treatment of war prisoners.

Of all those, it's that last one that could, however, cause some concern at confirmation hearings. That--meaning his dissent in Saleh v. Titan Corp.--especially when combined with his participation in the Hufaiza Parhat case.

In Hufaiza Parhat v. Gates (2008), a 3-judge panel of the D.C. Circuit, including Garland, ordered the release of a Guantanamo Bay detainee. In a decision otherwise sealed for national security reasons, the panel announced that the government's decision that Hufaiza Parhat was an "enemy combatant" was "invalid." It was the first civilian judicial review of the government's claimed justification for holding a Guantanamo detainee.

Combined with Garland's dissent in the Saleh (the Abu Garaib case), this may provide fodder for Senators bent on opposing an Obama nominee of the ground of being soft on our enemies or insufficiently deferential to the the military. That might well be grasping straws, but there are other real political considerations in nominating Garland.

First, he's extremely well qualified--education and legal and judicial experience. So, at the very least, he wouldn't face opposition on the basis of strict, ideologically-neutral merit.

Also in his favor, he's a white male. Nominating him will help show that Obama isn't only interested in promoting the interests of minorities and women--an increasingly frequent refrain and growing suspicion among the President's political opponents. It might also help Obama's party which is much less popular with white men than are the Republicans.

Additionally, Garland is from the Midwest--Illinois. He would be replacing a Midwesterner. At least as important, this means that Garland is not another Northeasterner. Or even an Easterner. Justices Stevens and Kennedy are the only non-Easterners on the Court. Yes, Chief Justice Roberts grew up in Indiana. But he was born in Buffalo, New York. He has been living and working in Washington, D.C. for a long time. He was elevated from a court in D.C. And, he went to college and law school at Harvard.

As for that last matter, it would surely be a negative to some to have yet another Justice from one of those northeastern Ivy League law schools. In Garland's case, Harvard. Every Justice, except the retiring Justice Stevens (Northwestern University law school), graduated from Harvard or Yale or, in the case of Justice Ruth Bader Ginsburg, from Columbia. (And she actually studied law at Harvard for 2 years.) No doubt, Southern, Midwestern and Western pride will be hurt if none of their schools are represented on the Court.

Along similar regional/tribal lines. A Garland appointment would also mean that all 9 Justices were either Catholic or Jewish. Stevens is the only Protestant currently on the Court. Replacing him with Jewish Garland would mean a Court composed of 6 Catholics and 3 Jews. That's quite an extraordinary statement about the progress of ethnics in America. But it is surely not one that will be viewed as optimal, pleasing, or even acceptable to many. It will certainly not be one that is missed in news reports, nor one lost on those with a hypersensitive sense or even paranoia about minorities getting all the breaks and taking over America. Indeed, there have been rumblings to that effect regarding this coming appointment.

Along similar, if even less "compelling" concerns, is the D.C. Circuit lock on the Court. If Garland is appointed, he would be the 5th Justice elevated from that single court. Roberts, Scalia, Thomas, and Ginsburg were also from that court. Garland's appointment would mean a majority of the Supreme Court Justices from just one of the nation's federal appeals courts--and none, by the way, from any of the state supreme or appeals courts. Justice Sandra Day O'Connor was appointed from an Arizona state appeals court, and Justice David Souter had previously served on the New Hampshire Supreme Court. But all the current Justices are from a federal appeals court, and a plurality from the D.C. Circuit.

What that also means, is that all the current Justices are from courts. All the Justices were Judges. All come from judicial careers. Many, including Obama himself, have raised that as a concern. That is, all the Justices come from a similar occupational mode. Garland would not bring any diversity to the Court in that regard. He was, however, a prosecutor, he did serve in the Justice Department, and he did work as a private attorney. So a good part of his career has not been the monastic life of a judge. But, his career has been that for the last 13 years.

Nevertheless, when everything is added, Judge Garland seems like a rather easy confirmation if he's nominated by Obama. Sure, there are a few irritants for some. Mostly, there are the regional/tribal factors. Obama is certainly aware of these and is weighing them. But the one likely to be the most politically salient--the Catholic, Jewish, and no-Protestant factor--is the least likely to be raised by a Senator, at least not too explicitly, as being troublesome.

I, for one, will not be surprised at all if Judge Garland is the nominee.

There are a few others who are apparently being seriously considered by Obama. Federal appeals Judge Sidney Thomas of Montana is one. We'll have to take a look at him. Homeland Security Secretary Janet Napolitano and Michigan Governor Jennifer Granholm are also being mentioned. We'll try to get to each of them before Obama actually makes his pick. The reports yesterday and today are that the President is getting very close.