LL1885

Since President Obama still has a “laundry list” of legacy issues for the remainder of his term, we are compiling our own laundry list of information on SCOTUS nominee Judge Merrick Garland of the US Court of Appeals for the District of Columbia.

The majority of  this the information was not found on conservative sites.  That should tell you something.

This list will be updated as needed, and it will be divided into categories as to make it easier for updates as they come in.

Background basics

• Native of Chicago
• Harvard University (1974)
• Harvard Law (1977)
• Clerked for various Judges (1978-81)
• Assistant U.S. Attorney for D.C. ( 1989-92)
• Private Practice – Arnold & Porter (1992-93)
• Various US DOJ Assistant Attorney General Roles (1993-97)
• Appointed to U.S. Court of Appeals in D.C. by President Clinton (1997)
• Was considered to replace Stevens  (2010)
• Became Chief Judge of the D.C. Court of Appeals (2013)
• Nominated for SCOTUS (March 2016)

Jamie Gorelick a.k.a. the Mistress of Disaster has been cited in a few places as a ‘key mentor’ of Garland’s.

Famous for the “Gorelick Wall“:

“The Gorelick memo of 1995 erected a “wall” between counter-intelligence and law enforcement, which impeded investigation of al Qaeda in the run-up to the 9/11 attacks. Jamie Gorelick, then working as Deputy Attorney General under Janet Reno was author of the memo.”

Despite all of that, Gorelick was considered in 2011 for heading up the FBI.

Background from multiple sources:
BallotPedia
Biography.com
The White House
Wikipedia

Gun Control

Only two cases regarding Gun control can be found.

• In 2007, Merrick voted to rehear a case concerning a restrictive handgun ban, which had been struck down by a D.C. Circuit panel of judges.  The petition was unsuccessful.
• Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement  NRA V. Reno (2000)  regarding the audit log or database of possible “federal registry” of gun purchasers.   National Rifle Association took the Justice Department to court, arguing that the regulation was in clear violation of the law passed by Congress. But Merrick Garland ruled in favor of the government, finding that the Justice Department’s interpretation of the Brady Act was fair.
• “In A 2000 Case, Judge Garland Ruled As Part Of A 2-1 Majority Against The National Rifle Association (NRA) In Its Challenge Of A Justice Department Regulation To Temporarily Retain Information Gathered During Background Checks For Firearms Purchases.”
  (Ben Conery and Kara Rowland, “Battle Lines Already Forming Over Shortlist To Fill Stevens’ Seat On The Supreme Court,” The Washington Times, 4/22/10)

Cases regarding Federal Agencies

Judge Garland cases regarding Federal agency’s and entities seem to show strong views in favor of the government.

According to SCOTUSBlog,  he sided with the federal agency every time.

• FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009)
  (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s designation of workers as employees rather than contractors);
• Northeast Bev. Corp. v. NLRB, 554 F.3d 133 (2009)
  (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s determination that certain conduct was protected under Section 7 of the NLRA);
• Financial Planning Ass’n v. SEC, 482 F.3d 481 (2007)
  (Garland, J., dissenting) (dissenting from panel opinion of Rogers, J., joined by Kavanaugh, J., invalidating SEC rule exempting broker-dealers from Investment Advisor Act in certain circumstances);
• Alpharma v. Leavitt, 460 F.3d 1 (2006)
  (per Garland, J.) (upholding FDA determination to approve drug, over partial dissent by Williams, S.J.); Secretary of Labor v. Excel Mining, 334 F.3d 1 (2003) (per Garland, J.) (joined by Rogers, J., upholding citations against mine operator issued by Secretary of Labor; over dissenting opinion of Sentelle, J.);
• Train v. Veneman, 310 F.3d 747 (2002)
  (joining opinion of Rogers, J., upholding Secretary of Agriculture’s implementation of subsidy program, over dissent of Sentelle, J.);
• American Corn Growers Ass’n v. EPA, 291 F.3d 1 (2002)
  (Garland, J., dissenting in part) (dissenting from majority opinion upholding industry challenge to part of EPA’s anti-haze regulations), after remand Util.
• Air Reg. Group v. EPA, 471 F.3d 1333 (2006)
  (Garland, J., on panel upholding regulations);
• Ross Stores v. NLRB, 234 F.3d 669 (2001)
  (Garland, J., dissenting in part) (dissenting from panel’s determination to overturn NLRB’s finding that employer unlawfully admonished employee for engaging in union solicitation);
• NRA v. Reno, 216 F.3d 122 (2000)
  (joining opinion of Tatel, J., upholding regulations implementing Brady Act; over dissent of Sentelle, J.);
• Iceland Steamship Co., Ltd. v. U.S. Dep’t of Army, 201 F.3d 451 (2000)
  (joining opinion of Sentelle, J., to uphold Army Contracting Officer’s decision; over dissent of Henderson, J.);
• American Trucking Ass’n v. U.S. E.P.A., 195 F.3d 4 (1999)
  (Tatel, J., dissenting from the denial of rehearing en banc) (Garland, J., joins dissent from denial of rehearing en banc of invalidation of EPA regulations under non-delegation doctrine), rev’d Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001);
• Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d 1050 (1997)
  (joining opinion of Silberman, J., upholding interpretation of Social Security Act; over dissent by Sentelle, J.).

See Pierce v. SEC for an interesting quote regarding regulatory agencies:

“Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L.Rev. 505, 570–71 (1985) (vacating and remanding is not a logical response where there is only one conceivable outcome). We do not quibble with an agency because we do not agree with every ground upon which it has justified its decision. -”

EPA

Merrick may be the 5th SCOTUS vote to make sure Obama’s Climate agenda stays alive.

• Garland Was The Lone Dissenter In 2002 Ruling That Struck Down EPA Regulations.
  “The Environmental Protection Agency must rework part of its regulation to cut pollution in national parks and wilderness areas, a federal appeals court said Friday. The EPA rule issued in 1999 requires states to take action to reduce air pollution from power plants and other sources whose emissions drift often hundreds of miles, causing haze and visibility problems in remote areas such as national parks and wilderness.
  ( NRSC.Org)
•  F. Josef Hebert, “Court: EPA Must Rework Plan To Cut Pollution In National Parks,”
  In a 2-1 decision Friday, a three-judge panel upheld the program’s fundamental goal of the states implementing pollution controls that would return parks and wilderness areas to ‘natural visibility’ over 60 years. But the ruling by the U.S. Court of Appeals for the District of Columbia Circuit said an EPA directive that states must require certain groups of polluters to use the ‘best available technology’ to cut pollution undermines states’ ability to decide how best to address the problem and is against the law. … Judge Merrick Garland filed a dissent, maintaining that the federal Clean Air Act expressly delegates authority to the EPA to make judgments on what steps should be required to reduce pollution. Judges Raymond Randolph and Harry Edwards disagreed.”
  (Associated Press)
• Majority Opinion: “Under EPA’s Take On The Statute, It Is Therefore Entirely Possible That A Source May Be Forced To Spend Millions Of Dollars For New Technology That Will Have No Appreciable Effect On The Haze.”
  “Key provisions of the Environmental Protection Agency’s 1999 regional haze rule are unlawful, a federal appeals court ruled May 24. The rule’s best available retrofit technology (BART) provisions are contrary to the text, structure and history of the Clean Air Act, the U.S. Court of Appeals for the District of Columbia Circuit held in American Corn Growers Assn. v. EPA. … ‘Under EPA’s take on the statute, it is therefore entirely possible that a source may be forced to spend millions of dollars for new technology that will have no appreciable effect on the haze in any Class I area,’ the appeals court said in remanding the rule to EPA.”
  (Public Power Weekly)
• DC Circ. May Clarify Carbon Capture Rules — Or Not
  On March 26, in Carbon Sequestration Council, et al. v. EPA, et al.,[1] the D.C. Circuit heard oral argument on the most recent industry challenge to an EPA rulemaking related to climate change.
  The petitioners claim the EPA exceeded its authority when it interpreted “solid waste” under the Resource Conservation and Recovery Act to include carbon dioxide sequestered underground using geologic injection.
  Both sides faced rigorous questioning from the three-judge panel, which hosted Chief Judge Merrick Garland together with Judges Janice Rogers Brown and Harry Edwards. On balance, the petitioners seem to face greater skepticism both on the merits and on their standing. Depending on the outcome, the court’s decision could have implications not just for carbon capture and sequestration operations, but also for other enterprises that rely on geologic injection, such as enhanced oil recovery operations and for the EPA’s RCRA program more broadly.
  ( Law360.com)
  

Where will he fall regarding GITMO? 

President Obama intends on closing GITMO and there more than a few reasons to suspect that Merrick Garland would help him in that endeavor.  In an article from USA Today: In 2008, he ruled that suspects could not be held as enemy combatants without verifiable evidence.

excerpt: We … reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government’s charges.”

• Huffington Post:
  “He weighed in on one of the earliest Guantanamo cases in 2003, as part of a panel of three judges that unanimously sided with the George W. Bush administration in finding that Guantanamo detainees cannot challenge their imprisonment in federal court — reasoning the Supreme Court ultimately rejected.But five years later, Garland wrote the 39-page opinion rejecting the government’s designation of Huzaifa Parhat, a Chinese Uigher, as an “enemy combatant,” a classification that had been used to justify his detention without charge at Guantanamo Bay.”
• TruthOut.Org:“IAN MILLHISER: Sure. So there was a question then dealing with whether or not Guantánamo Bay detainees were allowed to go to civilian courts or whether they had to go through the military tribunal system. He joined a ruling saying that they had to go through the tribunal system. At the — I believe he relied on a World War II precedent called Eisentrager, which is not a great decision. And that — and then his opinion was reversed by the Supreme Court five to four in the Rasul case.
• Washington Post:””The judges were particularly concerned with government assertions that the evidence was reliable because it was repeated in separate documents and that officials would not have included the information if it were not dependable. “Lewis Carroll notwithstanding, the fact the government has ‘said it thrice’ does not make an allegation true,” wrote Judge Merrick B. Garland, quoting from Carroll’s poem “The Hunting of the Snark.”

Mixed Record on Issues Involving Minor Party and Independent Candidates

Libertarians may take issue with one of his rulings, as well as Conservatives, who may not care for the GOP Nominee.

Via Ballot Access News:

“Judge Garland’s lowest quality work came in Libertarian Party v D.C. Board of Elections. In 2008, Libertarian presidential nominee Bob Barr failed to get on the ballot in the District of Columbia, but he filed for declared write-in status. He was the only write-in declared presidential candidate in D.C. that year. The Board refused to count Barr’s write-ins, even though in 1974 the D.C. city appeals court (not the federal court) had ruled that presidential ballots must include write-in space and those write-ins must be counted.

The D.C. Court of Appeals, including Judge Merrick, ruled that D.C. need not count Barr’s write-ins, because D.C. had released a count of the total number of write-ins cast for President, and that was good enough. Therefore, all reference books reporting election returns for the 2008 presidential election listed Barr as having received zero votes in D.C., despite evidence that some voters had written in Barr. The D.C. Court of Appeals opinion erroneously says that the Libertarian Party was demanding that all write-ins for President be canvassed. The briefs were clear that the Libertarian Party was only asking that the write-ins for declared write-in candidates need be counted. To this day, D.C. is the only jurisdiction that allows write-in presidential candidates to file a declaration of write-in candidacy, including candidates for presidential elector, and yet still won’t count the write-ins for such declared write-in candidates.”

Election Law

• Article by Rick Hasan from Election Law Blog suggests that Garland would most likely side with the more Liberal justices on election law, however, that Garland may not be 5th vote to over turn Citizens United.
• Rick Hasan wrote another article back in 2010 for Slate that I just read, and boy is it strangely prophetic.
  It was written after the Citizens United Decision and it’s titled,  Scalia’s Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls.

Articles

All articles listed below can be found at  Scotusbrief.org regarding Judge Merrick Garland and where his ideology may fall.  These are just some of the ones under tag Merrick Garland.

• Think Progress:
  “On Most Issues, Moreover, It Is Likely That Garland Would Side With The Supreme Court’s Liberal Bloc In Divided Cases.”
  (Ian Millhiser, “What we Know About The Judges Obama Is Reportedly Vetting For The Supreme Court,” Think Progress, 3/8/16)
• Western Journalism citing National Journal:
  “The National Journal, for instance, said Garland is “no conservative” and said his overall record suggests he will side with liberals, especially in split decisions. “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,” the magazine wrote in April of 2010 (the last time Garland was floated for a seat on the court).”
  (Warner Todd Houston, 3 Days Ago A Top Repub Said THIS About The Man Obama Just Nominated For Supreme Court, Western Journalism, 03/16/16)
  (Stuart Taylor, Jr., “Garland Born To Be A Judge,” The National Journal, 4/24/10)
• NY Magazine:
   “On some of the most important issues facing the court – the environment and labor law, to name two – Garland is every bit as progressive as Stevens, and much more so than the older judge was when he arrived on the high court.”
  (John Heilemann, “The President And The Persuader,” New York Magazine, 4/23/10)
• NY Magazine: Garland A Good Choice To “Protect The Legislative Gains Of His Presidency.” “And Garland’s tendency toward statutory deference … should be seen as a crucial quality by Obama, among whose main goals with this pick must be to protect the legislative gains of his presidency.”
  (John Heilemann, “The President And The Persuader,” New York Magazine, 4/23/10)
• NBC News: Garland has “The Right Kind Of Ideology” for President Obama. Williams: “I mean, the thing is now presidents tend to want younger nominees. If you look at the most recent trend, they’re nominating people in their 50s. That’s not Merrick Garland, but he’s the right kind of ideology.” (NBC’s “Meet The Press,” 2/14/16)

Financial Disclosure Information

Truthout.org has reported the following information on Judge Merrick Garland.

• “Garland, the sole appointee of the group not chosen by Obama, reported the most complicated financial portfolio of this group. In addition to other investments, the Clinton appointee is the only one to report owning stock in 2012, with holdings in big name companies such as Pfizer Inc., General Electric Co. and Citigroup Inc. He also was a landlord, earning as much as $100,000 in 2012 for a property in New York City.”
• Center for Public Integrity has the following investment information for Judge Garland calendar year 2012.

Miscellaneous

This section will be composed of articles that just don’t fall under any of the issues at hand.

• Garland Was Reportedly Considered For Cabinet Post In President Obama’s Second Term. “Judge Merrick Garland, currently serving on the D.C. Circuit Court of Appeals, is seen as a potential contender for Holder’s job but also could replace Napolitano. Matt Olsen, the director of the National Counter-terrorism Center, is seen as a DHS contender as well.”
  (Edward-Isaac Dovere, “Obama’s Second-Term Cabinet,” Politico, 11/7/12)
• Garland Clerked For “Legendary Liberal Champion” Justice William Brennan. “A magna cum laude Harvard Law School graduate, he clerked not just for any Supreme Court justice but for William J. Brennan Jr., the legendary liberal champion.”
  (Jerry Markon, “Merrick Garland’s been considered for the Supreme Court before. Is this his year?,” The Washington Post, 3/10/16)
• NY Magazine’s John Heilemann: Garland A Good Choice To “Protect The Legislative Gains Of His Presidency.” “And Garland’s tendency toward statutory deference … should be seen as a crucial quality by Obama, among whose main goals with this pick must be to protect the legislative gains of his presidency.”
  (John Heilemann, “The President And The Persuader,” New York Magazine, 4/23/10)

To Be Continued….