Viewpoint: Why Supreme Court Nominee Merrick Garland Deserves Serious Consideration

This morning President Obama threw a straight pitch directly into the strike zone when he nominated Judge Merrick Garland to the United States Supreme Court to fill the vacancy left by Justice Antonin Scalia. Garland, currently the chief judge for the United States Court of Appeals for the District of Columbia, was confirmed to that court in 1997 with bipartisan Congressional support and has been well regarded by both Democrats and Republicans.

Judge Garland would follow a traditional pathway to the nation's highest court. He is a Harvard Law School graduate who served for a number of years in the Clinton administration's Justice Department, and the majority of the U.S. Supreme Court Justices once served or were nominated to the D.C. Circuit including Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, and Clarence Thomas. Justice Elena Kagan was appointed to the D.C. District but was never voted upon in the Senate before she became a professor and then the dean at Harvard Law School. While the D.C. District covers a small geographical area, it does address all federal cases involving governmental entities headquartered in Washington, DC.

Garland has been on the short-list for a judicial appointee since the 1990s, and in 2010 he was considered a potential replacement for the retiring Justice John Paul Stevens.

While Garland is known for fairly moderate rulings, he is historically center-right in criminal law matters. In the days after the April 1995 Oklahoma City bombing, Garland, then serving as a Justice Department official in the Clinton administration, was dispatched to the site and later supervised the prosecutors as they obtained search warrants and met with survivors. The New York Times reports that he followed evidentiary procedures faithfully, such as obtaining subpoenas even when the phone and truck rental company volunteered to hand over evidence, to avoid problems at trial. See "How Bombing Case Helped Shape Career of a Potential Justice," New York Times, April 28, 2010.

In his capacity within the Clinton administration, Garland also supervised the Unabomber case and the Atlanta Olympics bombing case in 1996 before he was appointed to the D.C. Circuit.

Garland seems to have a balanced view of the rule of law. In 2008 Garland wrote a ruling in the case of Hazaifa Parhat who had been held for six years by the U.S. military at Guantanamo Bay, finding that the prisoner should be released because the government did not have enough evidence that Parhat was, in fact, an "enemy combatant," an accusation that the Bush administration used to deny Parhat access to the civilian courts. Parhat argued that the military's accusation that he was attending a terror camp at the time of the September 11, 2001 attacks was false. In his ruling, Garland found the government's assertions unsubstantial when they relied on other government documents rather than independent evidence of Parhat's alleged terrorist involvement.

"The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents," wrote Garland. "We are not persuaded. Lewis Carroll notwithstanding, the fact the government has 'said it thrice' does not make the allegation true. In fact we have no basis for concluding that there are independent sources for the documents' thrice-made assertions." See "Court citesnonsense poem in ruling for Gitmo detainee," CNN, June 30, 2008.

In response, the Bush administration indicated it would be working to pass laws that would make it more difficult for Federal judges to hear cases involving the Guantanamo detainees.

Garland's balanced approach to religious discrimination issues and legal procedures is evident in the 2010 case of Payne v. Salazar. Garland wrote the decision in the procedurally complicated case involving Cassandra Payne, a long-term Federal employee of the Department of the Interior who worked Monday through Friday as a tractor operator and was able to attend church and Bible study on the weekends but suffered an allergic reaction to a bee sting that left her unable to work outside. After she was stung, the Department accommodated her at an indoor job but denied her weekends off. She filed an EEOC compliant and her supervisor, in retaliation, gave her an onerous "minute-by-minute" work schedule and she was unable to have breakfast with co-workers and she was denied leave time. An EEOC administrative judge found that she had been discriminated against because of her religion and awarded monetary damages. After the federal employer paid her the ordered damages, the employer refused to provide her modified work following a medical leave for a bad back. Payne sued again for the failure to accommodate her medical condition, and the district court relied on a quirk in federal law to dismiss the case on the grounds that she had only included the back accommodation issue and did not include the religious discrimination case she had already won. Garland found that Payne had a right to trial de novo of whatever claims she brought to court, and that the Court did not need to hear both old complaint and the new complaint.

In Levitan v. Ashcroft (2002), Garland joined the three-judge panel in ruling that a federal prison rule prohibiting Catholic prisoners from consuming a small amount of wine as part of the Communion sacrament violated their First Amendment free exercise rights. The lower court had ruled that the prisoners' direct use of wine was not protected when the supervising chaplain was permitted to consume the wine. The D.C. Circuit found that the lower court erred in holding that it was necessary for a practice to be mandated by the prisoners' religion in order to be protected since it "finds no support in our case law."

Garland's exact rationale for a position against rehearing in the Priests for Life v. HHS case, involving the contraceptive mandate in the Affordable Care Act is not clear as not all justices were required to make their views known on the issue. However, the judges who wrote opinions against a rehearing indicated that the previous decision was not relevant to RFRA as it had been based on a matter of law, not religion, and those opposing indicated that the issues were different enough after the Hobby Lobby decision to warrant reconsideration. Garland's silence on the issue would have been of greater importance if Garland were on the bench in time for the scheduled March 23, 2016 Supreme Court oral arguments in Little Sisters of the Poor Home for the Aged v. Burwell in which the Court will be addressing a similar issue.

Since Scalia's death fell in the midst of the most contentious election cycle in modern history, Senate Republicans have indicated that they will vote down any nominee that President Obama proposes in this election year regardless of who is nominates. The Republican obstructionist strategy is short-sighted. A Hillary Clinton victory against the now presumptive Donald Trump ticket, weak poll numbers in a Clinton v. Trump campaign, and its consequential impact favoring Democrats down the ticket, mean that a Clinton administration would have a greater opportunity to appoint an ideologically liberal justice to the Court to fill the Scalia vacancy. From both a political and practical perspective, Republicans who are willing to see past November should seriously consider Garland's nomination.

Image Credit: WhiteHouse.gov.

Michael Peabody, Esq. is editor of ReligiousLiberty.TV, an Adventist jurisprudence website celebrating freedom of conscience.

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This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/7369

Regardless of what one thinks about the political leanings of Judge Garland, it is the Constitutional responsibility of the president (whether one agrees with his politics or not) to nominate someone to fill a vacancy on the high court. The Republican leadership seems to have lost its collective mind. They’ve accused the president of playing politics in his nomination of anyone to fill the vacancy. This is a classic case of the pot calling the kettle black. Much as I disagree with Obama on many of his policies, in this case he is merely doing what he was hired to do. For the Republicans to obstruct the process is partisanship at its worst. This is likely to have an effect on Senate elections this fall, and it probably won’t be looked upon too kindly by many of the electorate. They’ve shot themselves in the foot, maybe even the head. And they wonder why Congress has such a low approval rating. :unamused:

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The Republican Party has devolved into a fascist organization that stands opposed to the structures and institutions of our constitutional democracy. Over 60 percent of Donald Trump’s supporters believe that President Obama is a Kenyan-born Muslim. 20 percent of Trump’s supporters believe that President Lincoln should not have freed the slaves. The mailing list of white supremacists compiled by David Duke is highly coveted by Republican operatives, who are willing to purchase it for six-figure sums. Trump and many of his supporters are virulently racist, anti-Semitic, and anti-government. And Trump has not only incited violence against those who oppose him but threatens more violence if he is not the Republican Party’s nominee for president. The refusal of Republican senators to act in good faith with respect to Judge Garland not only disrespects the office of president and the Supreme Court but sends a message that normal governance set forth by the Constitution is no longer possible. Essentially, Republican senators are representing that we need to give Trumpism, a form of fascism, a try. Trumpism will be the official ideology of the Republican Party if and when he is nominated for president.

Normally, Seventh-day Adventists who cherish religious liberty would not bother opining about who should be nominated and confirmed to the Supreme Court. But the present breakdown in governance with respect to the refusal to confirm Judge Garland has significant repercussions that bear on our religious liberties. A religious liberty symposium that does not begin and end with an examination of the rise of fascism within the Republican Party is void of credibility.

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Only 2 posts so far but I am amazed at how much Phillip Brantley thinks he knows.
He knows what people think and what percentage of them think that. He knows what secret republican operatives want and how much they will pay for it and from whom.
Mind reading from thousands of miles away must be a real art.

As to the subject at hand. The piece very conspicuously excludes the area where the nominee is lacking. While he is as the piece states on various issues and legal decisions it is his position on the second amendment that excludes him from consideration.
In 2007, after a D.C. Circuit panel invalidated the District of Columbia’s handgun ban, Garland unsuccessfully favored a rehearing by the full court. The Supreme Court ultimately struck down the ban in a landmark 2008 opinion written by Scalia. An principal so fundamental to the Constitution so egregiously thrown aside by a Supreme Court candidate shows a horrendous blind spot on a critical issue.
Scalia was a Constitutionalist where this nominee is obviously not.
The SCOTUS being a separate but equal branch of government must, must, must reign in the branches of government that seek to expand their power to beyond their 1/3.
A mere eighteen months after Congress established home rule for the District of Columbia, the D.C. Council votes 12 to 1 in favor of a bill restricting city residents from acquiring handguns. The law exempts guards, police officers and owners who had registered their handguns before it took effect. Under the bill, all firearms (including rifles and shotguns, which were not restricted by the law) must be kept unloaded and disassembled, except those in business establishments.

An elementary child knows that the DC law was unconstitutional. This nominee didnt. Even many noted liberal leaning law experts disagreed with DC and its proponents.
“Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right or that it’s too much of a public safety hazard, don’t see the danger in the big picture. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.”
― Alan M. Dershowitz

I think the Republicans are merely trying to follow the Biden rule which was promulgated in tjhe late 1980’s

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Garland only voted in favor of en banc review of the D.C. Circuit’s decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed. Garland did not take a formal position on the merits of the case. Find something where he actually made a finding on the merits of a case and we might have something to discuss.

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In the interest of accuracy, Republicans did not say that they would vote down any candidate Obama nominated. Mc Connell said that he would not bring any nominee to the floor for consideration during this lame duck administration. The same position that Joe Biden advocated at the end of the Bush administration.

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the situation republicans are in now is probably beyond rich mcconnell’s experience and ken…there appears to be an inevitability to actions about to be taken by republicans that can only threaten gop survival in the long run…at the moment, grassroots gop-ers are adamant that a conservative justice cannot be replaced by someone appointed by obama, given the fact that one more liberal justice will tilt the court in a way that will make a repeal of obergefell v. hodges, obamacare and even roe v. wade, which some still want, all but impossible…there is also what appears to be the genuine concern that hillary’s real agenda with respect to assault weapons is an outright repeal of the second ammendment, which can only materialize with a leftist court…given the strength of the revolt against the establishment unfolding in the gop nomination now, i think mcconnell correctly understands that one more instance of the establishment ignoring its base will be the straw that breaks the camel’s back…

i think it’s clear obama understands all this, and is using the appointment of garland to deliver what he hopes will be the death-blow to those who made his presidency severely difficult, and many times miserable…the thing about abama is that he’s a master tactician, and very, very smart…i don’t think republicans have ever correctly estimated what they’ve been dealing with…

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I was waiting for someone to bring that up! :smile: So now it’s payback time it seems. Whats good for the goose is good for the gander, etc., etc.

Joe Biden - No Supreme Court Pick Until After Election (1992) (1 min clip)

However, all that aside, the Constitution doesnt say the President may nominate a Supreme Court Justice, or can if he wishes to. No, it says “he shall nominate.”

Both sides are champions when it comes to being petty, be it in your country or mine.

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This obstructionism has nothing to do with Judge Merrick Garland and his excellent record and proven experience as a worthy candidate for consideration. President Obama could have named Rush Limbaugh to be a Supreme Court Justice and he still would have encountered Republican opposition
.
Both Congress and the President have failed miserably to work together for the “common good”.

Republicans and Democrats are more divided along ideological lines – and partisan antipathy is deeper and more extensive – than at any point in the last two decades. These trends manifest themselves in myriad ways, both in politics and in everyday life. A new survey finds that these divisions are greatest among those who are the most engaged and active in the political process.

The overall share of Americans who express consistently conservative or consistently liberal opinions has doubled over the past two decades. And ideological thinking is now much more closely aligned with partisanship than in the past. As a result, ideological overlap between the two parties has diminished. Partisan animosity has increased substantially over the same period. In each party, the share with a highly negative view of the opposing party has more than doubled since 1994. Most of these intense partisans believe the opposing party’s policies “are so misguided that they threaten the nation’s well-being.” We have succeeded in demonizing our opposition.

This NOT what most Americans need or want. The majority do not have uniformly conservative or liberal views. Most do not see either party as a threat to the nation. And more believe their representatives in government should meet halfway to resolve contentious disputes rather than hold out for more of what they want. Congress currently has a dismal 12% favorablity rating.

Yet many, including a large number of Adventists, in the center remain on the edges of the political playing field, relatively distant and disengaged. There are still many Adventists who cling to the notion that it is a sin to vote and that we are “not of this world” and that “politics is a dirty business best left to others to mess with”, while the most ideologically oriented and politically rancorous Americans make their voices heard through greater participation in every stage of the political process.

These are sad times!

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I guess it was only a matter of time before Spectrum evolved into a platform for direct political advocacy.

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The Senate majority leader announces at the beginning of the second term of Obama’s presidency that their main intent was to repeal the ACA and obstruct any and all of his party’s bills. Under the Republican majority, the Congress has been the most obstructive of any recent times. How can any president function when the stated opposition from Congress is so blatantly clear?

The GOP has cooked their own goose: if they are the majority, what will the Democrats fight against; but if the Democrats are in the majority with their party’s president, what will their attitude be toward the obstructionists?

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Spectrum has always welcomed guest opinion pieces on a variety of topics. Have a viewpoint to share? Write an article for consideration.

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The GOP obstructionists in Congress have been motivated, ever since President Obama first took office, strictly by racial bias. Our first African-American President has had to take the brunt of the GOP racism. I believe history will bear out the fact that President Obama has been the most balanced, intelligent, and level-headed of all our U.S. presidents throughout history.

I am ashamed to say I used to be a registered Republican. Recently I came to my senses and changed my registration. But regardless of my registration, never in the past 40 years have I ever voted for a Republican nominee for President; there just haven’t been any valid candidates on the GOP ticket, IMHO. Now the party is self-destructing. Who could have predicted this, in Abe Lincoln’s day??

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Ted, where is your opinion piece?

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I agree with you wholeheartedly on this one Birder. I have voted Republican in every election since 1972, but this bunch of Republicans in the Senate have gone over the brink with obstructionism in refusing to even hold hearings and consider the Garland nomination. Majority leader Mitch Mcconnel has said the people need a voice in who is the next supreme Court appointee by waiting for the next president to make the appointment to fill the vacancy left by death of Justice Scalia.

With a demogog like Donald Trump the likely GOP nominee, the voters will probably let their voice be known and Hillary Clinton will probably be the next president along with a Democrat majority in the senate. She would no doubt appoint a younger and much more liberal nominee to fill the vacancy. Garland will no doubt tip the balance on the court toward the liberals but he is more of a moderate liberal. He is about the best we can expect from an Obama pick.

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I have read the comments with considerable concern, not just about where our country stands but where the members of our church are standing. I’m taken back by the fact that this Supreme Court nominee is being questioned about his stand on the 2nd amendment from a group of Seventh-Day Adventists. Honestly! I went into the Arm Services as a conscious objector during the Viet Nam conflict. Virtually the entire basic company I was in was made up of Seventh-Day Adventists. For you SDA’s who don’t know what a C.O. is. It means we were unwilling to carry a gun or take a human life. Today, if there were a draft, that would most likely change. SDA’s having guns seems to now be an acceptable norm. I know some church members who have an entire arsenal. Desmond Doss must be spinning in his grave. Then I heard about how this nominee might be supportive of Obama care. What ever happened to Matthew 25:30-to the end of the chapter? Do any of you Adventists care that 35,000 Americans die needlessly in this country every year because they don’t have health care, according to the New England Journal of Medicine. And Row vs Wade, Really? Have any of you ever done an in depth study of abortion. 95%+ of all Christian denominations believe in the immortality of the soul. What most of you don’t seem to realize is that it is the foundational issue of the abortion question. It isn’t about the soul after death…it is about the soul before conception. Most Evangelical denominations believe that God has had all of these souls up in heaven waiting for human bodies to implant them in. They think God is angry because His plans are being thwarted. This is Satan’s giant Trojan horse waiting to be wheeled into the gates, and we have swung them open wide. Then I read about “pay-back time”. Have we sunk this low? Honestly? Check your history. Presidents have nominated Supreme Court Justices in the last year of their presidency 16 times. One of them was Ronald Regan. Not exactly a Liberal. You’re all concerned about a “liberal” court, when you should be concerned about a “conservative” court. We just buried the worst justice on this bench when it comes to the issue of Separation of Church and State. Scalia made numerous statements: Just a couple: “Thomas Jefferson’s wall of separation of church and state is a spawn of Satan” or perhaps you would prefer: “With respect to public acknowledgement of religious beliefs, it is entirely clear from our nations historical practices that the establishment clause permits this disregard of polytheistic believers in unconcerned deities, just as it permits the disregard of devout atheists.” Or “There is nothing in the constitution that prevents the government from endorsing and promoting religion, as long as it’s not specific”. The last one would be a slam dunk for a Sunday Law. Try on one of justice Alito’s quotes: “The separation of church and state has been a cornerstone of American democracy for over 200 years. Getting rid of it was long overdue”. How about Clarence Thomas: “While the first amendment ‘probably’ prohibits congress from establishing a national religion. It wasn’t intended to restrict states from adopting their own official religions”. Then Chief Justice Roberts: “The judiciary has been able to impose a separation of church and state that’s nowhere in the constitution”. These are all CONSERVATIVE justices appointed by Republican Presidents. This is where the final battle will be. Not in the White House, the Senate or the House but in the Supreme Court. There are 6 Roman Catholics and 3 Jews on the Supreme Court. All of the Conservative Justices are Catholic and all of the court members who hold strong views in favor of the separation of church and state were appointed by Democrats. I won’t even go into Ben Carson’s support for Trump. Needless to say, it didn’t come as any surprise. I am dismayed by most Adventists lack of understanding on this critical issue. This time of trouble is NOT going to be brought about by Secular Humanist’s it will be brought about by “The Religious Right”.

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Early politicians required feedback from the public to determine what the people considered important. Since there were no telephones, TV’s or radios, the politicians sent their trackers to local taverns, pubs, and bars. They were told to ‘go sip some ale’ and listen to people’s conversations and political concerns. Many assistants were dispatched at different times. ‘You go sip here’ and ‘You go sip there.’ The two words ‘go sip’ were eventually combined when referring to the local opinion and, thus we have the term ‘gossip.’

Trackers drank from pint and quart-sized containers. A bar maid’s job was to keep an eye on the customers and keep the drinks coming. She had to pay close attention and remember who was drinking in ‘pints’ and who was drinking in ‘quarts,’ hence the term 'minding your 'P’s and Q’s ’

What we are reading or hearing today from Spectrum conversation it isn’t an advocacy to solicit unthinkable gossip champion but it’s a water witch hunt rounding up guests brilliant in brevity to ‘P’s and ‘Q’s responding to ‘Trackers Gossip’ tall as Trump Building reduce to organic toads.

Have you checked out the etymology of the word “gossip”? Perhaps you could reach for a dictionary.

Snopes.com debunks your definition here.

As for “minding your P’s and Q’s,” there are many possible sources–not just yours.

What you are saying here totally eludes me.

The OED is the only place to look for ancient derivations of words. Comes with a magnifying glass! Two volumes, very heavy. I believe the new one is out now.