For fed­eral judge, no lament­ing a lost seat

Friends, col­leagues say Gar­land seems un­fazed by or­deal.

Austin American-Statesman - - MORE OF TODAY’S TOP NEWS - Sarah Lyall ©2017 The New York Times

You might think it would take a toll on a per­son, be­ing nom­i­nated for the U.S. Supreme Court and then hav­ing to wait around for eight months in a pub­lic state of sus­pended prepa­ra­tion, si­mul­ta­ne­ously hold­ing out hope and see­ing it drift away.

But by all ac­counts, Judge Mer­rick Gar­land, thwarted nom­i­nee and high-profile ca­su­alty of Wash­ing­ton’s ex­treme po­lit­i­cal dys­func­tion, is do­ing fine, con­sid­er­ing. Back in his old job on the U.S. Court of Ap­peals for the Dis­trict of Columbia Cir­cuit, where he has been chief judge since 2013, Gar­land does not seem like a man un­hinged by an or­deal.

“What’s the deal with the soft­ware?” he asked a lawyer from the Drug En­force­ment Ad­min­is­tra­tion on a re­cent morn­ing. The lawyer was try­ing, not very suc­cess­fully, to ex­plain why the gov­ern­ment could not pro­duce a piece of elec­tronic ev­i­dence sought by a drug dealer in an ap­peal.

The judge pointed out that the agency had pro­vided “six rel­a­tively dif­fer­ent de­scrip­tions” of the sta­tus of the soft­ware in ques­tion. Though his ques­tions were foren­sic and his man­ner was ro­bust, his tone was kind and with­out sar­casm.

“Can you not find it?” he asked. “Does it not ex­ist?”

Thirty years ago, Judge Robert Bork’s failed Supreme Court nom­i­na­tion in­tro­duced a new verb into the U.S. lex­i­con. But if “to Bork” means to de­rail a di­vi­sive nom­i­nee’s can­di­dacy through a sus­tained at­tack on the can­di­date’s record, then “to Gar- land” surely means to kill a re­spected nom­i­nee’s chances by sim­ply let­ting him linger in limbo, vir­tu­ally ig­nor­ing him while re­fus­ing to con- sider his can­di­dacy.

Gar­land, now 64, had been on the short­list for the court twice be­fore, and he cried when Pres­i­dent Bar a ck Obama an­nounced his nomi- na­tion to fill the va­cancy cre­ated by the death of Jus­tice An­tonin Scalia. Now there is a new nom­i­nee, Judge Neil Gor­such, put for­ward by Pres- ident Don­ald Trump.

If the ex­pe­ri­ence left Gar- land frus­trated or dis­illu- sioned, he has never said so pub­licly. He de­clined to be in­ter­viewed for this ar­ti­cle, but his friends say they are more ag­grieved than he is.

“I found it very hard to put be­hind me what hap­pened to him in the past year,” said Danielle Gray, a for­mer Gar­land clerk. “He did not re­act with anger or self-pity, and that re­in­forced for me the char­ac­ter and de­cency of Judge Gar­land. In many ways, it made me feel worse.”

Elec­tion night must have been par­tic­u­larly hard. Had Hil­lary Clin­ton de­feated Trump, Gar­land might have been on the court, or on the way to the court, by now, ei­ther con­firmed in the wan­ing days of the Obama ad­min- is­tra­tion or renom­i­nated by the new pres­i­dent.

“He started the evening fi­nally at the point at which his nom­i­na­tion could go for­ward, and ended it at a point where it was dead,” said Jamie S. Gore­lick, who has known Gar­land since they went to Har­vard and who worked with him in the Clin­ton Jus­tice Depart­ment. “And that’s in a space of only a few hours.”

When she spoke to him later, “he was ex­tremely dis­ap­pointed, as ev­ery­one was, and sad about the clos­ing of this chap­ter in his life,” Gore- lick said. But, she added, “I’ve never seen him feel sorry for him­self.”

As in the clas­sic para­dox en­vi­sioned by the Aus­trian physi­cist Erwin Schroedinger, in which a cat en­closed in a steel cham­ber may be si­mul­ta­ne­ously dead and alive, Gar­land had to go into the process with two op­pos­ing ideas in his head.

One was that the nom­i­na­tion was vi­able. The other was that it was not be­cause the Repub­li­cans would hold to the pledge by Sen. Mitch McCon­nell of Ken­tucky, the Se­nate ma­jor­ity leader, to block any Obama nom­i­nee so as to leave the de­ci­sion to the next pres­i­dent.

The sit­u­a­tion was highly un­usual and pos­si­bly un­prece­dented. If noth­ing else, re­fus- ing to even hold con­fir­ma­tion hear­ings for a Supreme Court nom­i­nee was an ag­gres­sive break with Se­nate pro­to­col.

But Gar­land pro­ceeded as if it were a nor­mal sit­u­a­tion and he were a nor­mal nom­i­nee. Among other things, he met all of the Repub­li­can sen­a­tors who agreed to meet him, about a dozen in the end.

“He pre­pared for each meet­ing the same way, I as­sume, he pre­pares for oral ar­gu­ments,” said Josh Pol­lack, Obama’s spe­cial as­sis­tant for leg­isla­tive af­fairs. “He made sure he was fully aware of all the is­sues, their back­grounds, what mat­tered to them.”

A few Repub­li­can sena- tors said at the time that they be­lieved the Se­nate should fol­low its reg­u­lar pro­ce­dures and al­low the nor­mal con­fir- ma­tion process to pro­ceed. A few more said pri­vately that they were very sorry, but they could not do any­thing for the judge. In the end, none of the prepa­ra­tion or the meet­ings made a dif­fer­ence.

“They re­peat­edly would re­it­er­ate that it wasn’t about him — that he was in­cred­i­bly im­pres­sive and well qual­i­fied, but this was about pol- itics,” Pol­lack said. “Virtu- ally no one, with one or two ex­cep­tions, tried to even chal­lenge him on any­thing of sub­stance.”

As all this was go­ing on, Gar­land went on with the rest of his life. He con­tin- ued to per­form his ad­min­is­tra­tive re­spon­si­bil­i­ties at the ap­peals court, though he did not hear cases. He mourned his mother, his fa­ther-in-law and his old friend Judge Ab­ner J. Mikva, whose deaths while the nom­i­na­tion was pend- ing shook him emo­tion­ally, friends said.

He con­tin­ued to tu­tor chil­dren at J.O. Wil­son El­e­men­tary School in North- east Wash­ing­ton, where he has vol­un­teered for nearly 20 years and where he was the fea­tured speaker at the fifth-grade grad­u­a­tion cer­e­mony in June. Tear­ing up a lit­tle, as he tends to do at such mo­ments, Gar­land ex­horted the stu­dents to work hard and to not give up.

“When you watch Steph Curry glide down the bas­ket­ball court, and Bey­oncé dance across the stage, it sure looks easy,” he said. “But ev­ery step is a re­sult of hours and hours of prac­tice, dis­ci­pline and de­ter­mi­na­tion.”

Heidi Haggerty, the school’s prin­ci­pal, said that dur­ing the nom­i­na­tion process, she and the judge joked about how “he couldn’t just hop into the car” and drive over, on ac­count of his new Se­cret Ser­vice de­tail.

The judge also kept in touch with a large cir­cle of friends and for­mer clerks, whom he treats as a kind of ex­tended fam­ily. Sev­eral said in in­ter­views that when they called to of­fer sup­port, he ended up com­fort­ing them.

His friends sought amus­ing ways to cheer him up dur­ing the drawn-out process, bring­ing elab­o­rate jig­saw puz­zles to help him while away the time, Gore­lick said. They also gave him a piñata as a jok­ing ref­er­ence to a re­mark by Sen. John Cornyn, R-Texas, that any Obama nom­i­nee for the court would “bear some re­sem­blance to a piñata.”

One of the frus­tra­tions of writ­ing about Gar­land is that no one, not even a Repub­li­can, seems to be able to find a bad thing to say about him. And that is what makes what hap­pened to him even harder, his ad­mir­ers be­lieve.

“He did ev­ery­thing right — he never said a cross word, he never made a joke about it, he never politi­cized it,” said Tali Farha­dian We­in­stein, a for­mer Gar­land clerk.

“The char­ac­ter he showed through the whole process proves how qual­i­fied he was for the job,” she added, “and it adds to the tragedy that he didn’t get it.”

DOUG MILLS/THE NEW YORK TIMES

Judge Mer­rick Gar­land was nom­i­nated to the Supreme Court, but the Se­nate re­fused to con­sider the nom­i­na­tion. Gar­land has not spo­ken pub­licly of any frus­tra­tion, and his friends say they are more ag­grieved than he is.

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