17 March 2016
New York litigators and appellate experts praised D.C. Circuit Chief Judge Merrick Garland, nominated Wednesday by President Barack Obama for the U.S. Supreme Court, as a brilliant and moderate judge, a consensus-builder with a meticulous and non-ideological approach to law.
See more coverage of the Garland nomination from The National Law Journal.
Kathleen Sullivan, chair of Quinn Emanuel Urquhart & Sullivan's appellate practice, who has known Garland for many years and has recommended law clerks to him, called him a "hard working judge who writes clear and lucid opinions even in complex cases."
"He's very oriented to creating consensus," she said. "You might say he's the opposite of [Justice Antonin] Scalia, who was a robust dissenter."
Sullivan cited his experience supervising the Justice Department's investigation into the bombing of the Oklahoma City Federal Building in 1995 and the prosecution of the so-called "unabomber," Ted Kaczynski.
Perhaps no one on the U.S. Supreme Court has similar experience overseeing one of the largest criminal investigations in the country, Sullivan said. His experience would influence the court's criminal cases, which make up more than a third of its docket.
"Judge Garland, with a very strong prosecutorial background, may well be to the right of Justice Scalia on certain criminal justice issues," she said.
Eastern District Magistrate Judge James Orenstein, a member of the prosecution team in the Oklahoma City bombing trial, said Garland "identified good people and let them do their jobs," was always available for advice and made sure the prosecution's team had resources.
Garland is an "exceptionally qualified lawyer and judge. He's an extremely decent judge. You can't ask for better qualities," Orenstein said.
Seymour James, the attorney-in-chief of The Legal Aid Society, said, "We would probably prefer to have someone who is more liberal on criminal cases, but I can't quibble with his qualifications. He's pretty distinguished jurist" and "looks to have impeccable credentials."
Christopher Paolella, a partner at Reich & Paolella who clerked for Justice Samuel Alito, said he sees Garland as left of center in judicial philosophy, but that Garland is not viewed as extremist and hasn't made sweeping judicial pronouncements.
"He comes to the court with more of the judicial world view of Justice [Stephen] Breyer than a Justice Scalia," Paolella said.
If confirmed by the Senate, Garland would "move the center of gravity" to the left of center, Paolella said, because he would replace Scalia, "who was both an intellectual giant and the rock on which the court's center-right coalition has been built in the last 25 years."
Defies a Label
Erin Murphy, a New York University law professor who clerked for Garland from 1999 to 2000, said "I don't think it's a careful and safe choice—I think it's a great choice. He has shown an incredible capacity to listen to those who disagree with him and learn."
She said Garland is not gratuitously confrontational. "What you're find is a thoughtful and careful jurist. He's dealt with some of the most contentious issues of our times," including social justice and national security.
Murphy said some people find him less progressive on criminal justice issues than they would like. "But I don't think you'll see he's an ideologue or an partisan. He's not someone who says, 'The government is always right.'"
She added, "he is always open, engaged and intellectually willing to consider any view point. It will be difficult to put a label on him."
Garland would have his mind made up on a case, Murphy said, but would use oral argument to question attorneys on the weakest part of their case so they would have a second chance to change his mind.
Another former law clerk, Clare Huntington, a Fordham University law school professor, said Garland has a reputation for being prepared. "He knows every case inside and out," she said, "both high level generality of understanding the theory of case, but then all the way down to minute factual records."
David Cooper, of counsel at Quinn Emanuel who clerked for Garland from 2004 to 2005, said virtually all of the cases he remembers were voted on unanimously when Garland was on the panel.
Appellate attorney Andrew Pincus, a partner at Mayer Brown, said Garland drives consensus and seeks to find middle ground. "He's not someone who wants to make a broad pronouncement of what the law is."
Garland was an Arnold & Porter litigation associate between 1981 and 1985. He made partner in 1985 and remained there until 1989 when he left to serve as an assistant U.S. Attorney.
"We were privileged to know him both as a person of great integrity and an extraordinarily gifted lawyer," Arnold & Porter chairman Richard Alexander said. "The country has been fortunate that he has given much of his professional life to public service. We look forward to his confirmation."
Likelihood of Confirmation
Overall, attorneys said Garland is the most moderate candidate Obama could have picked and the most likely to be confirmed at a time when Senate Republicans have maintained that the next U.S. president should make the nomination.
Paolella said Garland takes on issues case by case and therefore is less of a "roll of the dice" candidate if Republicans believe they have a chance of losing the presidential election with Donald Trump as their nominee. A Hillary Clinton presidency may make a less appealing recommendation for Republicans, he said.
"There are some Republicans who would say, 'This is the least bad nominee we can get from this administration,'" Paolella said. "If hope starts to fade, I could see new calculations being made in the Senate."
What sweetens the nomination for Republican consideration is Garland's age, Paolella said. "It's a built-in term limit when you nominate an older judge and he comes to the court with more experience."
Andrew Frey, another appellate partner at Mayer Brown, added that, "Republicans may find him tempting if they think they're going to lose the election."
"If they think a President Clinton may nominate a more liberal and younger candidate, it may be in their interest to confirm, rather than the alternative that they may be confronted with after the election," Frey said.
He added, "I think even people who would prefer a more liberal nominee would have difficulty" opposing Garland.
Reprinted with permission from the March 17, 2016 edition of New York Law Journal © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.