Or­rin Hatch called Mer­rick Gar­land “a con­sen­sus nom­i­nee” for the high court. That was be­fore Obama picked him

Repub­li­cans fig­ured the pres­i­dent wouldn’t pick Mer­rick Gar­land The court nom­i­nee is “es­sen­tially from cen­tral cast­ing”

Bloomberg Businessweek (Asia) - - CONTENTS - −Paul M. Bar­rett

The last time Pres­i­dent Obama had a high court seat to fill, in 2010, Repub­li­cans sin­gled out Fed­eral Ap­peals Court judge Mer­rick Gar­land as their pre­ferred choice. Utah Sen­a­tor Or­rin Hatch, an in­flu­en­tial GOP voice on ju­di­cial nom­i­na­tions, said pub­licly at the time that he’d gone so far as to rec­om­mend Gar­land to the pres­i­dent as “a con­sen­sus nom­i­nee” who would get con­firmed “vir­tu­ally unan­i­mously.” Obama chose Elena Ka­gan, his so­lic­i­tor gen­eral, in­stead.

Asked on March 11 about the cur­rent open­ing cre­ated by the un­ex­pected death of Jus­tice An­tonin Scalia, Hatch told the con­ser­va­tive web­site News­max.com that Obama “could eas­ily name Mer­rick Gar­land, who is a fine man.” Hatch, who is among

the GOP politi­cians who have said the Se­nate shouldn’t hold hear­ings on any­one Obama nom­i­nates, added that the pres­i­dent “prob­a­bly won’t do that be­cause this ap­point­ment is about the elec­tion.” In­stead, Hatch spec­u­lated, Obama would nom­i­nate some­one to please the Demo­cratic base.

On March 16, Obama called Hatch’s bluff, an­nounc­ing his nom­i­na­tion of Gar­land, the cen­trist chief judge of the U.S. ap­peals court in Wash­ing­ton, D.C. Fol­low­ing Se­nate Ma­jor­ity Leader Mitch McCon­nell, Hatch promptly dou­bled down and said law­mak­ers should stonewall the Gar­land nom­i­na­tion. “Do­ing so will keep what should be a se­ri­ous con­fir­ma­tion dis­cus­sion from be­com­ing den­i­grated by the toxic pol­i­tics of this elec­tion sea­son,” Hatch said in a state­ment on his web­site. “This ap­proach to the Se­nate’s ad­vise­and-con­sent role isn’t about the in­di­vid­ual the pres­i­dent has cho­sen,” the Repub­li­can added. “It’s about the broader prin­ci­ple.”

By send­ing Gar­land into the par­ti­san mael­strom, Obama has made the bat­tle about a par­tic­u­lar in­di­vid­ual, one who will test the Repub­li­can strat­egy of max­i­mum ob­struc­tion. In a Rose Gar­den cer­e­mony, the pres­i­dent said that in dis­cus­sions about Supreme Court va­can­cies dur­ing his White House ten­ure, “the one name that has come up re­peat­edly, from Repub­li­cans and Democrats alike, is Mer­rick Gar­land.” (Obama pre­vi­ously passed over Gar­land to se­lect two women jus­tices who are per­ceived as more re­li­ably lib­eral: Ka­gan and So­nia So­tomayor.)

Obama high­lighted Gar­land’s su­per­vi­sion, un­der the Clin­ton ad­min­is­tra­tion, of the fed­eral in­ves­ti­ga­tion into the 1995 Ok­la­homa City bomb­ing and the suc­cess­ful pros­e­cu­tion of home­grown ter­ror­ist Ti­mothy McVeigh. Be­tween U.S. Depart­ment of Jus­tice stints, Gar­land was a part­ner at a cor­po­rate law firm in Wash­ing­ton.

At 63, Gar­land, a judge for the past 19 years, would be the old­est Supreme Court nom­i­nee since Pres­i­dent Richard Nixon chose 64-year-old Lewis Pow­ell in 1971—a fac­tor that un­der or­di­nary cir­cum­stances might en­dear him to Repub­li­cans, who would pre­fer jus­tices ap­pointed by Democrats not to stay on the bench for very long. For all Gar­land’s ide­o­log­i­cal mod­er­a­tion, though, his in­stal­la­tion in Scalia’s place would un­doubt­edly tilt the court to the left, giv­ing Demo­cratic-ap­pointed jus­tices a 5-4 ad­van­tage that could lead to lib­eral vic­to­ries on such top­ics as abor­tion, af­fir­ma­tive ac­tion, cam­paign fi­nance, and regulation of busi­ness.

The other re­ported fi­nal­ists for the Scalia va­cancy were Sri Srini­vasan, an In­dian-born col­league of Gar­land’s on the D.C. ap­pel­late bench, and Paul Wat­ford, a black judge on the U.S. ap­peals court based in San Fran­cisco. Of the three, Tom Gold­stein, a prom­i­nent ap­pel­late lawyer in Wash­ing­ton and co-founder of the Scotusblog web­site, ranked Gar­land as the best qual­i­fied and, the Repub­li­can road­block not­with­stand­ing, the most con­firmable. Gar­land, Gold­stein wrote be­fore the an­nounce­ment, is “es­sen­tially from cen­tral cast­ing.”

As an in­ter­me­di­ate-level ap­pel­late judge, Gar­land has gen­er­ally de­ferred to fed­eral reg­u­la­tory agen­cies in their con­fronta­tions with busi­ness. He wrote for his court in 2015 when it up­held a 75-year-old ban on fed­eral con­trac­tors mak­ing fed­eral cam­paign con­tri­bu­tions. In other cases, he’s led pan­els that backed the Na­tional La­bor Re­la­tions Board when it or­dered an In­di­anapo­lis com­pany to re­in­state work­ers who were fired af­ter hold­ing a strike to protest ac­tions taken against a co-worker, and when the NLRB ruled against a Cal­i­for­nia lum­ber sup­plier that with­drew recog­ni­tion of a union.

Given Repub­li­cans’ in­tran­si­gence, Gar­land’s most salient char­ac­ter­is­tic might be his proven will­ing­ness to wait. Pres­i­dent Clin­ton first named him to fill a va­cancy on the D.C. ap­peals court in 1995, but the nom­i­na­tion lan­guished be­fore a Repub­li­can­con­trolled Se­nate whose ma­jor­ity said the Wash­ing­ton court had too many mem­bers. Af­ter win­ning re­elec­tion in Novem­ber 1996, Clin­ton renom­i­nated Gar­land. In March 1997, he fi­nally won ap­proval in a 76-23 vote; Repub­li­cans who op­posed him said it wasn’t per­sonal, and they were merely protest­ing an un­nec­es­sary judge­ship. If a Demo­crat is elected this fall, Gar­land could fol­low a sim­i­lar path to a seat on the top court.

The bot­tom line The nom­i­nee for Scalia’s va­cant Supreme Court seat was pre­vi­ously en­dorsed by Or­rin Hatch, who now op­poses hear­ings.

Mer­rick Gar­landAge 63 Home­town Chicago Education Har­vard BA in so­cial stud­ies, 1974; JD, 1977Clerk­ships Se­cond Cir­cuit Judge Henry Friendly; Supreme Court Jus­tice Wil­liam Bren­nan

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