Judge Nominated to Supreme Court

Merrick Garland has ‘extensive record on labor and employment issues’

By Allen Smith, J.D. Mar 17, 2016
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Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit  and, as of March 16, nominee to serve on the Supreme Court, is the most moderate justice President Barack Obama could have nominated, according to Stuart Gerson, an attorney with Epstein Becker Green in Washington, D.C. 

But Garland is still left of center on civil rights and has a record of being significantly more liberal in class actions and in some cases where business interests are at stake, Gerson said.

“Judge Garland has an extensive record on labor and employment issues, deferring to decisions of the National Labor Relations Board in all but four of 22 cases he authored,” said Hal Coxson, an attorney in Ogletree Deakins’ Washington, D.C., office.

“On the D.C. Circuit, Judge Garland also has a consistent record of decisions supporting civil rights plaintiffs in employment discrimination matters,” Coxson added.

Michael Lotito, an attorney with Littler and co-chair of Littler’s Workplace Policy Institute, said that “there are a number of decisions he has issued, including in dissent, that rule in favor of unions and tend to show deference to administrative agencies.”

Gerson said Garland is tough on crime. While an attorney at the Justice Department, Garland led the investigation and supervised the prosecution that brought Oklahoma City bomber Timothy McVeigh to justice. He described Garland’s decisions as “all over the board” and “very fact-dependent,” saying that his opinions have never been subject to Supreme Court review.

Political Wrangling

Whether Garland’s nomination will advance to a Senate hearing and floor vote, or whether any Supreme Court nomination made during the last year of a president’s term should await the election of the next president, “will be the subject of intense political wrangling,” Coxson noted.

Senate Majority Leader Mitch McConnell, R-Ky., announced that the Senate would not hold hearings for Garland’s nomination. “Let me remind colleagues what Vice President Biden said when he was Judiciary chairman here in the Senate: ‘It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process.’ ”

McConnell emphasized, “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction. … The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”

However, in nominating Garland, Obama said, “I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs. Presidents do not stop working in the final year of their term. Neither should a senator.”

The White House said that the longest it has ever taken between nomination and confirmation for a Supreme Court justice was 99 days for Justice Clarence Thomas; the last four justices were confirmed in an average of 75 days.

In addition, the White House noted that Sen. Orrin Hatch, R-Utah, said on March 13, 2016, that the president “could easily name Merrick Garland, who is a fine man.” And Chief Justice John Roberts at his confirmation hearing said, “Any time Judge Garland disagrees, you know you’re in a difficult area.”

However, former Attorney General Eric Holder said at the Society for Human Resource Management’s Employment Law & Legislative Conference in Washington, D.C., on March 15, that he didn’t see how a nominee by the president to the Supreme Court would get a vote for confirmation in the Senate during 2016.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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