Senate Republicans are still refusing to do their job in the Supreme Court confirmation process nearly three months after Justice Antonin Scalia’s death. But the nonpartisan Congressional Research Service (CRS) is not shirking its responsibility to evaluate federal judge Merrick Garland as President Obama’s nominee to fill the vacancy on the high court.
Scholars in CRS’s American law division took on the daunting task of synthesizing and evaluating Garland’s opinions and votes in 19 years on the federal court of appeals for the D.C. Circuit. The 81-page report, completed on April 27 and circulated earlier this week, is a model of CRS’s highly regarded work as the Library of Congress’s research arm for congressional offices.
The report opens with an overview of Garland’s record and reputation and follows with an exploration of specific subject areas, all thoroughly documented with more than 600 small-print footnotes. The report is neither puff piece nor hatchet job and makes clear at several points that Garland, if confirmed, would be a different justice from Scalia.
With that said, CRS’s verdict is clear even after the scholars acknowledge the hazards of predicting a justice’s future even with a long record on the bench beforehand. Garland, they write, “has been widely viewed as a meticulous and cautious jurist, writing with precision and an eye toward ensuring that the court does not overreach in any particular case.”
In the same vein, the CRS scholars say that Garland has a “minimalist approach to judging” along with a seeming aversion to unnecessary disagreements with his fellow judges. He has dissented infrequently, they write, on average less than once a year.
As further evidence of his judicial collegiality, they cite three cases in which Garland authored unanimous opinions for ideologically diverse panels on hot-button legal issues, including campaign finance. “Judge Garland’s ability to garner unanimous opinions in such cases . . . may demonstrate his willingness to prioritize collaboration above ideological rigidity in his work,” the scholars write.
Even without getting into specific subjects, Garland’s record in that regard suggests one major difference from Scalia. Whatever else may be said about his tenure, Scalia clearly preferred his own views of the law to any different views of his colleagues. He compromised rarely, wrote separately often, and, as a result, authored relatively few noteworthy majority opinions under his name given his 29 years on the court.
Garland’s record at the Supreme Court is better than average for lower federal courts. The high court has issued full opinions in only nine cases in which Garland has participated. In five of those, the justices agreed with the position Garland took. Comparatively, the court reverses about two-thirds of the cases it reviews with full opinion.
Interestingly, one of the decisions Garland participated in that the Supreme Court reversed was the first of the high court’s Guantanamo decisions, Rasul v. Bush (2004). Garland joined the unanimous three-judge panel in following an old precedent to rule that federal courts had no authority to review the detention of foreign combatants at Guantanamo. The Supreme Court voted 6-3, over a dissent by Scalia, to reverse course and allow habeas corpus suits by the Guantanamo prisoners.
The CRS report delineates several differences between Garland and Scalia while conceding that in some areas Garland’s views are simply unknown because he has not had cases posing those issues. The blank spots include such important areas as constitutional civil rights law, abortion, and freedom of religion.
On the important jurisprudential issue of statutory construction, Garland is a contrast to Scalia’s self-proclaimed commitment to strict textualism, with scant if any attention to legislative intent and none to legislative history. Garland has no “overarching” approach to statutory interpretation, the report says, but he appears to consider “multiple factors, including the text, structure, context, and history of specific statutory provisions.”
In civil litigation, Garland is likely to be “more hostile” to business interests and more receptive to the plaintiffs bar than the conservative Roberts Court majority that Scalia helped form and in several cases led. On federalism issues, Garland is seen as having “no inclination to narrow Congress’s authority” vis-à-vis the states again in contrast to Scalia’s views. Garland may have a broader view of substantive due process than Scalia even though he joined an opinion rejecting a patient’s use of the doctrine to claim a right to use experimental drugs.
Garland’s unanimous en banc opinion upholding a ban on campaign contributions by federal contractors suggests he is unlikely to join the Roberts Court majority in cutting down campaign finance regulations. Garland’s critics view him as a likely naysayer of another Roberts Court initiative: the Second Amendment gun rights decision in Heller, authored by Scalia. The CRS scholars acknowledge that Garland voted at the D.C. Circuit to rehear the panel’s decision in that case striking down the District of Columbia’s handgun ban, but they the vote as little evidence of Garland’s view on the issue.
The CRS report confirms the dominant picture of Garland of a moderate consensus-builder that has emerged since his nomination. It also shows that a confirmation hearing has much to explore, and the public much to learn, from his televised testifying from the witness table. Despite their public stance, the Senate Republicans’ refusal to convene such a hearing is preventing the American people from having a voice in who the next Supreme Court justice will be.