Opinion

OPINION | LAURENCE H. TRIBE

From judge to justice: the case for Merrick Garland

Supreme Court nominee Judge Merrick Garland waited for a meeting on Capitol Hill on Monday.

BRENDAN SMIALOWSKI/AFP/Getty Images

Supreme Court nominee Judge Merrick Garland waited for a meeting on Capitol Hill on Monday.

In nearly five decades teaching law, I’ve been lucky enough to know many Supreme Court justices. I’ve counted them among my friends, colleagues, students, and research assistants. I’ve seen that success on the court requires diverse traits: deep knowledge of the law, humility about the judicial role, an understanding of and concern for law’s real-world impact, and the ability to build coalitions on the bench. Having known Chief Judge Merrick Garland for over 40 years, I’m confident he possesses all these qualities and more. He will be among our nation’s finest justices, and I strongly encourage the Senate to end its obstructionism and confirm him to the court.

Begin with Garland’s intellect and knowledge of the law, both of which are impossible to overstate. He has earned a reputation as a “judge’s judge,” a master of the judicial craft. His intellect is widely respected, with none other than Chief Justice John Roberts summing up the formidable legal mind that so many have witnessed: “Anytime Judge Garland disagrees, you know you’re in a difficult area.” Even within a credentials-minded profession, Garland stands out: highest honors at Harvard College, high honors at Harvard Law School, clerkships for two of the greatest judges of the 20th century, elite private practice experience, and distinguished service as a prosecutor in the Department of Justice. All this before serving for nearly two decades on the D.C. Circuit, longer federal judicial service than any other justice in American history had before ascending to the highest bench.

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Garland’s intellectual abilities are all the more impressive because they are paired with modesty and humility about the judicial role. He is universally praised as fair to all who come before his court and open to arguments on all sides. Nobody could accuse him of being an ideologue or a results-driven activist, as is evident from the contorted arguments to which Republican senators have cynically resorted. His character manifests itself not only in a gentle and winning personality, but also in his jurisprudence: Garland is deferential to the political branches on matters of policy and has never substituted his personal views for those of Congress or the executive — all while being firmly committed to legal and constitutional principle whenever the other branches overstep their proper roles.

This deep knowledge of the law and balanced sense of the judicial role have rightfully gained Garland support from both sides of the aisle. Of the 76 senators who voted to confirm his 1997 appointment to the D.C. Circuit, 32 were Republicans — and the only basis offered for opposing him concerned the size of the court, not his background or temperament. When President Obama last filled a vacancy on the Supreme Court, in 2010, Republican Senator Orrin Hatch noted that Garland would have been a “consensus nominee,” with there being “no question” that he would be confirmed. Shortly after Justice Scalia’s death, Hatch reiterated that Garland is “a fine man” whom Obama could well nominate to the court.

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Hatch and other Republicans are shamefully reversing themselves for purely partisan reasons. The nature of their opposition is telling: Nobody has suggested any substantive reason to oppose Garland. To the contrary, widespread bipartisan respect for Garland represents something increasingly rare in a bitterly divided Washington and a politically fragmented nation. The American people evidently share that respect: More than 60 percent of those surveyed approve of the Garland nomination, and the same number believe the Senate should give him a hearing and vote on his confirmation to the court.

If confirmed, Garland will bear in mind the real-world impact of his legal decisions — both on vulnerable individuals and on the broader workings of society. That became clear from the passion with which, in his 1995 role as a federal prosecutor, he sought justice for the victims of the Oklahoma terrorist bombing. There were echoes of that passion in his forceful dissent in Saleh v. Titan, where his colleagues refused to hold accountable the private contractors who provided propaganda for Islamic Jihad by grossly abusing detainees at Abu Ghraib. Garland’s dissent dispatched the legal issues masterfully, but most striking was the way it began by describing with blunt directness the barbarism at the heart of the case, painting in vivid colors what it would mean to leave unrequited the experience of having been “beaten, electrocuted, raped, subjected to attacks by dogs.”

On a range of other civil rights issues, Garland has repeatedly acted to protect those who need judicial protection most — always in a manner consistent with the governing legal provisions and controlling precedents. He has authored opinions to ensure that plaintiffs alleging race or gender discrimination have their day in court. He has repeatedly voted to protect the rights of children and people with disabilities. Hard-fought civil rights victories will be secured and protected in the hands of a Justice Garland.

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More broadly, Garland has a vision of American justice in which the courthouse doors are wide open to those with meritorious claims. In recent years, federal courts have repeatedly undermined access to justice: Judicially constructed procedural hurdles now stand in the way of a day in court for all but the most privileged Americans and the most powerful corporations. Garland’s record displays a healthy skepticism toward this trend. His decisions in cases involving discrimination or disability, in cases about plaintiffs’ standing to sue, and on the ability of states to provide redress beyond that available under federal law, all send a clear message: Judges should avoid building legal walls with little purpose beyond keeping plaintiffs out of court. Those who seek judicial redress because they have nowhere else to turn can look to a Justice Garland to keep the courthouse doors open.

Some have voiced disappointment that the president didn’t nominate someone more outspokenly progressive and conspicuously passionate about the major social and political issues of the day. Their disappointment misunderstands not only the role of a judge serving at a level below the Supreme Court but also the importance of coalition-building to success on that highest court. As a young man, Garland clerked for the famously liberal but even more famously affable Justice William J. Brennan, who always reminded his law clerks about the challenge of “counting to five”: The need to garner five votes for a majority often means reaching for common ground and accommodating legitimate differences of opinion within an ideologically disparate group of jurists. In his Leprechaun-like way, that’s just what Brennan did.

Garland internalized this vital lesson and manifested it during his time on the bench. As chief judge of the D.C. Circuit, a court that has often witnessed bitter divisions, Garland has presided over a collegial court and gained universal respect among his colleagues, whatever their philosophical bent. And he has long been able to write opinions that win votes from judges with views quite different from his own. When they served together as circuit judges, for example, the current chief justice joined Garland’s opinions upholding a pro-labor NLRB decision and rejecting defendants’ attempts to dodge meritorious claims by hiding behind the shield of sovereign immunity.

Just as on the D.C. Circuit, Garland’s quiet, even self-effacing, style will enable him to build coalitions and consensus, both within the court and, almost as important, beyond its walls. These bridges are not ends in themselves, but in Garland’s hands they will support a Constitution that preserves the principle proudly carved on the Supreme Court pediment: “Equal Justice Under Law.”

All this means that Senate Republicans’ utterly unprecedented refusal even to consider the merits of Garland’s appointment is a shameful abdication of their constitutional duty to provide advice and consent on filling this Supreme Court vacancy. If those senators had genuine concerns about Garland’s record or his qualifications, that would be one thing. But they have no such concerns — only a partisan and seemingly bigoted preference that the next justice be chosen by anyone other than this president, a position that demeans the nearly 66 million people who voted to make Barack Obama president, and that would have been neither more nor less justifiable the day after President Obama’s inauguration than it is today. The unprincipled refusal to hold hearings and vote on the Garland nomination is a stunning repudiation of the comity and collegiality that once characterized the “world’s most deliberative body,” a body hypocritically declining to deliberate at all.

There is another way, however. In recent days several senators have softened their positions and expressed a willingness at least to meet with Garland. Others have cautiously suggested that hearings should be held and that Garland’s name should come up for a Senate vote. In Democratic hands, the Senate held hearings and an up-or-down vote even on nominees the Democratic majority bitterly opposed, like Robert Bork and Clarence Thomas. If those judges, for all their controversy, deserved hearings, then holding hearings for a judge as universally admired as Merrick Garland should be a no-brainer. Senate Republicans should heed the words of Chief Justice Roberts, who criticized recent confirmation votes along party lines as suggesting “that the process is being used for something other than ensuring the qualifications of the nominees.” On these metrics, Garland should receive fair consideration, full hearings, a vote, and a seat on the Court.

A brilliant legal mind. A strong sense of fairness. A generous spirit of service. These are among the many reasons why Merrick Garland should serve our nation on its highest court, and why the Senate must fulfill its obligation to hold hearings and vote on his nomination. A Justice Garland would be a splendid addition to the court — but that can only happen if the Senate does its job.

Laurence H. Tribe is Carl M. Loeb university professor and professor of constitutional law at Harvard. His former students include Garland, Supreme Court Justice Elena Kagan, Chief Justice John Roberts, and President Barack Obama.
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