Jamie Gorelick calls Merrick Garland the Democratic version of Chief Justice John Roberts Jr.
"I think he is an ideal candidate for the Court based on his background, his standing at the Court, and his temperament," says Gorelick, a longtime Garland friend and former deputy attorney general who chairs the public policy and strategy practice group at Wilmer Cutler Pickering Hale and Dorr.
Since Barack Obama won the presidency, Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit, has been mentioned by D.C. insiders as a potential dark-horse candidate for attorney general or even a possible pick for the U.S. Supreme Court should a slot come open during the next four years.
Garland's friends say they don't think AG is in the cards. But for the Court, he has clear advantages: At 56, he's the youngest of the Democratic appointees on the D.C. Circuit — the court that launched four of the current members of the Supreme Court, including Roberts. He's also got a bipartisan fan club: Democrats and Republicans say the judge — who was appointed by President Bill Clinton in 1997 — is respectful, not overtly ideological, and capable of marshalling disparate ideas.
Bradford Berenson, a Sidley Austin partner who served as associate White House counsel under President George W. Bush, says Garland is an "obvious" choice for the Supreme Court.
"He's clearly one of the stars of the federal appellate bench and would be a top choice for any Democratic president to elevate," says Berenson, who chairs the Federalist Society's criminal law and procedure practice group.
'Intellectual force'
Roberts spent two years on the D.C. Circuit — widely regarded as the second most important court in the country — before being elevated to chief justice in 2005. Roberts joined other circuit alums on the high court — Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg.
"The fact that Justices Roberts, Ginsburg, Scalia, and Thomas all came from the D.C. Circuit suggests it is in some ways a court where a president tries to place some of his most promising judges," Gorelick says.
A Chicago native, Garland graduated magna cum laude from Harvard Law School in 1977 and clerked for Judge Henry Friendly in the U.S. Court of Appeals for the 2nd Circuit — the same judge for whom Roberts clerked. Garland then clerked for Justice William Brennan Jr. before becoming a special assistant to Attorney General Benjamin Civiletti in 1979.
After leaving Justice in 1981, Garland joined Arnold & Porter as an associate — he made partner three years later — where he practiced in the firm's criminal, civil, and appellate litigation groups. From 1989 to 1992, Garland was a prosecutor in the U.S. Attorney's Office in the District. After a short return to Arnold & Porter, Garland joined the Clinton administration in 1993 as deputy assistant attorney general in the Criminal Division. A year later, he became principal associate deputy attorney general, supervising the Oklahoma City bombing investigation and the prosecution of Unabomber Ted Kaczynski.
In 1995, Clinton picked Garland for a slot on the circuit, but the nomination stalled in the Republican-led Senate for two years amid a dispute about whether the D.C. Circuit had too many judges. Clinton renominated Garland in 1997 and that March the Senate voted 76-23 to confirm him.
Garland has been part of hundreds of arguments since taking the bench. At oral argument, Garland rarely sits back. He engages the lawyers in a soft-spoken, polite style. He often asks a lot of questions, showing his preparation. Lawyers who know Garland, who declined to comment for this article, say he routinely works on weekends.
A former Garland colleague, Robert Weiner, a partner at Arnold & Porter, calls Garland a "moderate" and an "intellectual force" on the court. In this year's edition of the Almanac of the Federal Judiciary, lawyers who evaluated Garland anonymously praise his "unusually broad background." One remark: "He is a liberal — but he doesn't wear it on his sleeve."
Over the course of his appellate career, Garland has protected an endangered toad from a housing development in California, upheld a jury verdict against the District for the sexual abuse of women inmates, and issued a 27-page dissent from an en banc decision reversing the bribery conviction of a D.C. police officer.
Lawyers in the District highlight Garland's opinion in Parhat v. Gates — a decision that rebuked a hallmark government method used in detaining prisoners at Guantánamo Bay — as a demonstration of the consensus Garland builds on the court.
Writing for the unanimous three-judge panel, which included Reagan-appointee Chief Judge David Sentelle and Judge Thomas Griffith, appointed by George W. Bush, Garland said in the politically charged case that government had failed to prove the reliability of hearsay evidence used in the determination that a Guantánamo detainee was an "enemy combatant."
In the opinion, Garland referenced "The Hunting of the Snark," the Lewis Carroll nonsense poem, writing: "Lewis Carroll notwithstanding, the fact that the government has 'said it thrice' does not make an allegation true." Garland is known to write his own opinions.
"If you look at his opinion in the Uighur case [Parhat], he brought along judges from very different parts of the political and judicial spectrum," Gorelick says. "That is precisely what one would want on the Supreme Court."
High court roadblock
But even though Garland's hand looks good, if a seat opens up on the high court, he may not get the nod — in the first round at least.
Appellate advocates say the Obama administration will be under pressure to bring greater diversity to the Supreme Court — nominating another black lawyer, or an Hispanic, or a woman. That pressure is amplified by the fact that the last two appointees were, like Garland, white men.
There are currently two immediate openings on the D.C. Circuit — one created by Judge A. Raymond Randolph taking senior status on Nov. 1 and the other from Roberts' elevation. Obama could use those openings to place other potential Supreme Court nominees — perhaps an academic or a professional who lacks judicial experience. D.C. lawyers mention Harvard Law School Dean Elena Kegan or Harvard Law School professor Charles Ogletree Jr. as academics Obama might consider for the circuit.
Other names being floated for open spots on the D.C. Circuit include Seth Waxman, chair of Wilmer's appellate and Supreme Court litigation practice group, and Sidley Austin partner Virginia Seitz, a veteran appellate advocate. Waxman is routinely cited as a Supreme Court pick, too.
With Democrats firmly in control in the Senate, Obama appointments are expected to see far less resistance than appointments made under Bush and Clinton.
Curt Levey, executive director of the conservative Committee for Justice, says the group will pick and choose which Obama appointments to oppose. Garland's, he says, would not likely be one.
"He's certainly not on the loudly opposed list," Levey says. Neither was John Roberts Jr.
