His nomination to the U.S. Supreme Court appears doomed, but Justice Merrick Garland would have been a moderate voice that delivered few surprises to business, even if he put the brakes on the conservative attack on the regulatory state.
During his nearly two decades on the D.C. Circuit Court of Appeals, Garland has consistently voted in favor of what, until this century, was mainstream thinking toward the Environmental Protection Agency and other federal agencies that make the rules that affect businesses every day. The Harvard and Harvard Law grad's decisions generally came down in favor of deference toward agency rules, although he was hardly a reliable voice for the Earth Liberation Front.
He was on the panel this year that remanded a mercury rule to the E.P.A. for further consideration instead of vacating it as expected, after the Supreme Court decided in Michigan v. E.P.A. that the agency must take costs into account. But Judge Garland also has ruled against environmental groups seeking standing to sue agencies, their favorite tactic for achieving stricter regulations.
"I don’t see him as a reliable liberal jurist," said Thomas Lorenzen, a partner with Crowell and Moring in Washington who served as a top environmental lawyer in the Justice Dept. from 2003 to 2014. With the prospect of Donald Trump winning the Republican nomination and possibly losing to Hillary Clinton in the general election, he said, senators will have to think hard about rejecting Garland. He's 63 and Clinton might well nominate a younger and more liberal judge instead, changing the politics of the court for decades.
"If you are the Republican-controlled Senate you may look at that prospect, and the nominee you get with her as president, and that might make you favor a moderate," Lorenzen said.
President Barack Obama, announcing Garland's nomination, noted he clerked for two judges nominated by President Dwight Eisenhower -- Judge Henry Friendly on the Second Circuit and then Justice William Brennan on the U.S. Supreme Court -- and has shown "unwavering support for the rule of law."
The president even quoted Chief Justice John Roberts, a former colleague of Garland's on the D.C. Circuit, as saying "any time Judge Garland disagrees, you know you’re in a difficult area.”
After clerking, Garland quickly rose to partner at the D.C. corporate law firm of Arnold & Porter in 1985 before leaving to become a federal prosecutor in 1989. He oversaw the Oklahoma City bombing case, even moving to that city for four weeks during the initial investigation, as well as the prosecution of the Unabomber.
As a judge, Garland has stuck to the middle course. He was overturned by the Supreme Court in a decision where he joined a panel that blocked habeas corpus review for Guatanamo prisoners. He also voted with the panel holding that the FCC’s revocation of a license was subject to restrictions in the U.S. Bankruptcy Code, which the Supreme Court upheld.
Perhaps his most famous business case was joining the “hapless toad” decision upholding the application of the Endangered Species Act to the arroyo toad. Roberts, then on the D.C. Circuit, dissented in Rancho Viejo v. Norton, saying Congress may have exceeded its powers under the Commerce Clause by protecting an animal that never crosses state lines. Environmentalists cited the dissent in hearings over Roberts’ nomination to the Supreme Court.
Garland has also been a staunch defender of First Amendment rights including dissenting in Lee v. DOJ in favor of broader reporter’s privilege and upholding a First Amendment challenge to a regulation prohibiting signature solicitations outside post offices. He voted to reconsider another D.C. Circuit decision striking down a city gun ban, a decision that ultimately led to the Supreme Court's affirmation of the Second Amendment individual right to bear arms in D.C. v. Heller. But again, his views on the Second Amendment and deferring to local legislators on gun control were considered mainstream until Heller.
Lorenzen said Garland's defense of the so-called Chevron doctrine granting broad deference to agency decisions hardly makes him an outlier. Justice Antonin Scalia was a Chevron advocate until shortly before his death.
"That said, he’s a stickler for the law," Lorenzen told me. "If he doesn’t believe the text supports your argument, he will call you on it."
Conservatives have little to complain about even nominally liberal justices when it comes to the normal run of business cases. Justices Sonia Sotomayor and Elena Kagan, who won seats that Garland also was considered for, have joined pro-business decisions including the 2012 Sackett v. EPA ruling upholding landowners' right to challenge wetlands decisions in court.
