President Barack Obama, announces the nomination of chief judge Merrick Garland, right, to the U.S. Supreme Court, at the Rose Garden. March 16, 2016. (Photo: Diego M. Radzinschi/NLJ)
It was the summer of 1976 and Jack Sutro, managing partner of the firm then known as Pillsbury, Madison & Sutro, was hosting a cocktail party at his grand Presidio Heights home. As formally dressed waiters served hors d’oeuvres to partners, associates and spouses, two lawyers began debating an issue of constitutional law.
Pillsbury partner Bruce Ericson doesn’t remember the precise point, but he hasn’t forgotten who was debating it: Sutro, the firm’s gruff managing partner, and a summer associate named Merrick Garland.
As the debate became more vigorous, the rest of the room fell silent. “This was in Jack’s house,” Ericson recalled Wednesday. At least a few people were thinking, “Uh-oh, what has Merrick gotten himself into?”
But the second-year law student got the better of the debate, Ericson said. And, more important, “he did so with such grace and poise and style that no one could take offense.” That’s why the moment stays with Ericson 40 years later.
On Wednesday, President Barack Obama nominated Garland to the U.S. Supreme Court vacancy created by the death of Justice Antonin Scalia. Californians who’ve worked alongside Garland over the course of his 40-year career say he’s maintained that combination of intellectual rigor and charming collegiality.
“In terms of persuading colleagues, he did value consensus,” said UC-Davis law professor Albert Lin, who clerked for Garland on the U.S. Court of Appeals for the D.C. Circuit in 1997-98. “He would, on some issues, try to resolve the case in a way where he could get consensus from the entire panel.”
Lin says Garland, like Chief Justice John Roberts, appreciates the importance of building institutional capital. “It’s not just about [him], the judge, writing this opinion,” he said.
University of San Francisco School of Law dean John Trasvina observed the same qualities while working in the Justice Department when Garland was a deputy attorney general. “I couldn’t imagine him ending a discussion based on whose voice was loudest or who had the most authority,” he said.
Trasvina believes Garland would be the kind of Supreme Court justice who wouldn’t be satisfied with a 5-4 majority. “Justice Scalia probably was satisfied with a dissent—a scathing dissent—if he could get his point across.” Garland, he thinks, would try harder to hear out his colleagues “and move some minds.”
The key is Garland’s dedication to considering all of the arguments in a case from every angle, says UCLA law professor Kristen Eichensehr, who clerked for him in 2009. “There’s never any question that he’s prepared,” she said. That helps him find points of agreement that might lead to a consensus resolution.
“His reputation is for being an active questioner on the bench, and he was very active with us,” said UC-Davis’ Lin. Garland’s clerks tried to anticipate every possible question the judge would have about a case, but never succeeded. The judge didn’t yell at them or embarrass them, Lin said. He just seemed to think of questions “that no other mortal” would.
As has been well-publicized, Garland will have a difficult road to confirmation, if he has any road at all. Some news outlets have dubbed him “the pinata nominee” because of GOP senators’ stated refusal to schedule a confirmation hearing.
His former clerks aren’t worried for him. “He’s been through tough, high-pressure situations before,” such as the extended confirmation process for his D.C. Circuit nomination, said Eichensehr. “It would be great if we saw some of the collegiality he demonstrates applied to this nomination.”
“I can’t think of someone who’d be better suited to withstand it and come through it well,” said USC law professor Samuel Erwin, who also clerked for Garland in 2009.
In a similar tradition to Sutro’s, Garland invites all of his former clerks to his house once a year, albeit for brunch, not dinner. So when Erwin saw Garland get a little emotional while receiving the nomination Wednesday, Erwin got choked up too.
“I know how important he considers his family,” Erwin said. “It really resonated for me.”
Michael Mongan, who clerked for Garland in 2006, recalls a down-to-earth judge who would poke his head into the clerks’ office after grabbing his morning coffee ready to talk about the minute detail of a case or what was on Saturday Night Live over the weekend. Garland instilled an appreciation for public service in his clerks, said Mongan, a deputy solicitor general in California who noted that he and two of his three co-clerks from the 2006 term are now working for public agencies.
“It was the greatest legal education I could have obtained,” he said. “I like to think that when I’m writing a brief now there’s a little Judge Garland telling me to dig a little deeper, to look around the corner at what I might be missing.”