For federal judge, no lamenting a lost seat
Friends, colleagues say Garland seems unfazed by ordeal.
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.”
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.