Merrick Garland will forever be remembered as the would’ve been Supreme Court justice. But obstructionism in the Senate halted and prevented the last nomination of President Obama. The historic obstruction lasted 293 days before Garland’s nomination expired.
Garland has been described as a centrist judge, as opposed to Obama’s other appointments of liberal justices, Kagan and Sotomayor.
Garland graduated from Harvard University and then Harvard Law School. He clerked for Judge Henry Friendly and Justice William Brennan. He served as Deputy Assistant Attorney General and, in 1995, was appointed to the Federal Court of Appeals for the D.C. Circuit by President William Clinton. During his confirmation, he said judges do not have “roving commissions to solve societal problems,” signaling his repudiation of judicial activism. Republicans halted his nomination but we finally appointed in 1997 after another nomination by Clinton. He was considered on the short list alongside Elena Kagan and Sonya Sotomayor for Justice John Paul Stevens seat on the Court.
He was then nominated in 2016 to fill the seat of the late Antonin Scalia, which, as we know, did not go his way. In a Washington Post article, some lawyers suggested that although the Supreme Court found intersession recess appointments to be unconstitutional, Garland could have been appointed in the intrasession recess of 2016. Yet, other lawyers noted that in the same opinion, Noel Canning v. NLRB, Justice Breyer’s opinion precluded both.
As far as rulings go, Garland agreed with the other two judges on the D.C. Circuit stating the courts lacked habeas corpus jurisdiction over Guantanamo. However, Garland ruled to uphold environmental regulations of the Clean Air Act, subsequently overturned by the Supreme Court. In many cases, such as Heller v. D.C., Garland showed much restraint and moderation as a federal judge.
Regardless of his record, Garland will, rather haplessly, be remembered as the Supreme Court would-have-been.