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Who is Merrick Garland? Legal analysts review his record — and his chance

March 16, 2016 at 7:39 PM EST
Following President Obama’s nomination of chief D.C. Circuit appeals judge Merrick Garland to the Supreme Court, Judy Woodruff turns to Marcia Coyle of the National Law Journal and former Solicitor General Seth Waxman for more on the unique situation. Also, Gwen Ifill talks to Sen. Orrin Hatch (R-Utah) and Sen. Al Franken (D-Minn.) for some insight into how Congress will respond.
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JUDY WOODRUFF: If confirmed, he’d become the third justice appointed to the Supreme Court by President Obama. So, who is Merrick Garland?

To answer that question, we turn to Seth Waxman. He was the U.S. solicitor general under President Clinton, in charge of that administration’s cases before the Supreme Court. He now focuses on Supreme Court litigation in private practice. And Marcia Coyle, chief Washington correspondent for “The National Law Journal” and a “NewsHour” regular.

And welcome to you both.

So, Seth Waxman, you have known Merrick Garland since you were in college together. What should we know about him?

SETH WAXMAN, Former Solicitor General: Merrick Garland is a grand slam nominee for the Supreme Court, not just a home run, but a grand slam nominee.

He has every qualification to be a truly great Supreme Court justice. He is — he has a very keen intellect. He thinks, writes and speaks very clearly. He is the consummate collegial human being in his personal life and in his professional life. He is a terrific, terrific, and always has been a terrific listener to other people’s views.

He decides everything very deliberately. He is a very careful person, a very considerate person. I doubt very much that there is anybody who has known Merrick Garland personally or has been a professional colleague or adversary of his that wouldn’t say that this man has all the qualifications to be an important jurist and a valued colleague for the other Supreme Court justices, whatever their jurisprudential views.

JUDY WOODRUFF: That’s quite an endorsement.

Marcia Coyle, where does he fit on the ideological spectrum?

MARCIA COYLE, The National Law Journal: Well, I think his reputation is as a centrist. And he has that reputation because you can’t peg him as always liberal or always conservative.

He is not, on the D.C. Circuit, always pro-government when agency cases come before him. He’s not always pro-environmentalist, or pro-business. He is in the middle. So, on those types of cases that the D.C. Circuit gets — and that court has a very heavy, steady diet of federal regulatory cases — he is a centrist.

What we don’t know is how he might rule in sort of the culture war issues that currently are now before the Supreme Court, because he hasn’t had those types of issues.

JUDY WOODRUFF: Because those are the type cases that presumably don’t come up.

MARCIA COYLE: That’s right, Judy.

But it is fair to say that President Obama wouldn’t have nominated someone like Justice Scalia, for example. He nominated Merrick Garland because at least he sees in Merrick Garland, aside from his really unassailable qualifications, someone who shares a similar approach to the law.

JUDY WOODRUFF: What would you add to that, Seth Waxman?

SETH WAXMAN: You know, I think Merrick has a reputation for being a centrist, a prudent jurist.

And I want to say that, you know, since we were in college together, Merrick has had the deserved reputation for being a careful, deliberate, prudent person. I don’t mean to say that he’s timid. He makes decisions, and he makes them when they have to be made, and he makes difficult decisions, but he doesn’t decide anything, he doesn’t decide things in his — with the exception of his decision to marry Lynn, he doesn’t decide things based on emotion.

JUDY WOODRUFF: Which he mentioned today at the…

(CROSSTALK)

SETH WAXMAN: And he doesn’t make decisions based on the received wisdom of other people. He doesn’t say, oh, well, all these people that I respect think this, so I should think that.

You know, Merrick goes back to first principles when deciding things like which ski run to take when we’re skiing together. He is a careful, prudent person. And, you know, honestly, in the 45 years we have known each other, I don’t think that we have ever had a political discussion.

Nobody would call me politically astute, and nobody would call Merrick politically active. I honestly can say I don’t know what his views are on some of these hot-button issues. I think the president’s decision to nominate him reflects a determination to make an unassailable, merits nomination.

JUDY WOODRUFF: Marcia, how does this — you were telling — you were saying to us earlier this is kind of an unprecedented situation, where the Senate is not only saying we’re not going to hold hearings. Many of the Republicans are saying, we don’t even want to meet with him.

MARCIA COYLE: Yes, that’s true.

JUDY WOODRUFF: How does this compare with other nominations?

MARCIA COYLE: Well, it doesn’t compare with any in my past, and I have covered confirmation hearings and nominations since the Robert Bork hearings in 1987.

Even as controversial as Robert Bork was, the Senate did have a hearing. To say they — some — some senators to say they wouldn’t even meet Judge Garland, I think, is unprecedented, and, you know, personally, a little disrespectful. This is a presidential nomination to the U.S. Supreme Court.

JUDY WOODRUFF: Seth Waxman, finally, you know, it’s already being said that Merrick Garland is a sacrificial lamb, that, given the disposition of the Senate majority, that he isn’t going to get a hearing, that his name is being put out there and it’s going nowhere. Is he prepared — knowing him, is he prepared to be just that?

SETH WAXMAN: Well, I should say that, as close as I feel to Merrick, I haven’t spoken to him since Justice Scalia passed away. We haven’t had a conversation on this.

But, based on what I know about him, I can tell you that he is the kind of person who I think feels tremendously honored to have been nominated, to have been even considered by the president. And he doesn’t — he’s not the kind of person who holds a grudge or gets angry or ever displays anger.

If it turns out that he’s not given a fair, respectful treatment by the Senate, it would be regrettable for the nation, but he will go on being a terrific jurist as the chief judge of the D.C. Circuit.

JUDY WOODRUFF: Seth Waxman, Marcia Coyle, we thank you both.

SETH WAXMAN: Thank you.

MARCIA COYLE: Thank you, Judy.

GWEN IFILL: Now that the president has announced his nomination for the Supreme Court vacancy, the responsibility falls squarely on the Senate to act or perhaps, in this case, not to act.

I spoke a short time ago to two members of the Senate Judiciary Committee, first, Republican Senator Orrin Hatch of Utah.

Welcome, Senator.

As you probably are aware, several of your Republican colleagues have said they at least plan to meet with Judge Merrick Garland. Do you plan to?

SEN. ORRIN HATCH (R), Utah: We’re friends. I would be happy to meet with him any time, but it isn’t going to change the viewpoint.

And the viewpoint is, is that we ought to put this off until the next election, or until after the election, so that it’s fair to both sides and we get it out of this what really — what really is a toxic presidential election process. It’s just terrible.

GWEN IFILL: So, you’re saying if this were not a toxic election process, it would be OK for any president to be able to make his nominee?

SEN. ORRIN HATCH: Well, it depends.

It depends on — you know, I don’t know what’s going to happen after this election, but putting it off until after the election seems to me to be a wise thing to do. It will bring people together better than just trying to ram it through this time.

GWEN IFILL: Does it seem right to you that this should be about the election process, rather than about the quality of the nominee?

SEN. ORRIN HATCH: Yes, look, the quality of the nominee isn’t an issue. The person is not an issue.

What is an issue is, should we do this during this toxic presidential election process? Because you have seen over the recent years — and the Democrats started this when they really destroyed Bork, who was one of the all-time great legal minds.

GWEN IFILL: So you’re saying — let me just get this right — that, all things being equal, if this were not an election year, but it was still this president making the nomination, knowing what you know about Merrick Garland, you could conceive of supporting him?

SEN. ORRIN HATCH: Well, I didn’t say that. I’m saying that, you know, we have only had a very few times in history where somebody has been put up during a presidential election year.

1916 was the last effective time, and that’s when Chief Justice Charles Evans Hughes decided to leave the court and run for president. We had one other time when Judge Kennedy was confirmed after — during a presidential year, but he was nominated in the year before, and that only came after the toxic, you know, Bork proceedings, where his reputation was really attacked viciously by Democrats.

So — and I can tell you this. If the table were turned and this was — and the Democrats are in charge, I guarantee you — or excuse me — Republicans had the presidency, I guarantee you the Democrats wouldn’t do anything different from what the Republicans are doing.

And I think it’s only right.

GWEN IFILL: So, since so much of the toxicity, as you describe it, in this election has happened on the Republican side of the competition, do you worry that if a Democrat were elected president, you may have missed a chance to at least hear — hold a hearing for someone you who might actually find more acceptable than a Democrat, the next Democrat might nominate?

SEN. ORRIN HATCH: Well, I think it’s been toxic on both sides, and it’s going to get worse, as far as I can see. So, you know, the Democrat election hasn’t been a walk in the park either.

But I will tell you one thing I’m tired of. And that is, when it comes to the Supreme Court, we should all be venerating that court and venerating the people on it. And to put them through — put even a good candidate through this toxic process during a presidential election, which really hasn’t been done before in this way, I think, is a tremendous — would be a tremendous mistake.

And Republicans just aren’t going to do that. Neither would Democrats. If the position was changed and it was the other way around, the Democrats wouldn’t be going ahead either.

GWEN IFILL: So, what happens next? We just go through the motions for a couple months?

SEN. ORRIN HATCH: Well, I think — I think people ought to start accepting that the Republicans are not going to do this at this time, in this presidential election.

But there will come a time when it will have to be done, regardless of who is president. And, yes, to answer your question, yes, I would prefer having a Republican president, because I think you will get better judges.

But, you know, if Mrs. Clinton is elected, she’s certainly going to be able to appoint the judges that she thinks are the better type of judges. And they will be much more liberal than the judges and certainly justices that the Republicans would promote.

GWEN IFILL: Well, I suppose that’s the gamble then.

Senator Orrin Hatch of Utah, thank you very much.

SEN. ORRIN HATCH: Well, nice to be with you.

GWEN IFILL: Now we turn to a Democrat on the Senate Judiciary Committee, Senator Al Franken of Minnesota.

Senator, what do you make of the nominee that was put forward this morning, and, also, the Republican reaction to him already?

SEN. AL FRANKEN (D), Minnesota: Well, I think he was a great choice.

I have been hearing about Judge Garland for a long time. He, I know, was in the running for Justice Kagan’s seat, and I think maybe Sotomayor’s. I have heard great things about him from a number of friends, including from Orrin Hatch, my Republican colleague from Utah, who is on the Judiciary Committee.

I think that this was a great nominee because he’s a consensus-builder. He’s widely respected. And I think that my Republican colleagues who are taking a very unpopular position with the American people, which was not to meet with, not to give a hearing to the president’s nomination, not to do the job that’s there in the Constitution for us to do, to provide advice and consent, I think they’re going to back off of that, and I think we’re going to have a hearing and a vote on Judge Garland.

GWEN IFILL: What indication do you have that that’s going to happen? They have been as tough and firmer today, if anything, about their — Senator McConnell has, even Senator Hatch has — that this is not going to happen. How do you get around that?

SEN. AL FRANKEN: Well, for example, the chairman of the committee, Chairman Grassley, has said that he wouldn’t meet with the — any nominee, and, today, he announced that he was going to have a phone call with Judge Garland to discuss a meeting.

I don’t think you announce that you’re calling — having a phone call to discuss a meeting unless you’re going to have a meeting. So it feels like they’re softening. And I know that there are seven meetings scheduled from Republican senators, including someone as conservative as Senator Inhofe.

I think that has to do with the unbelievably stellar job that Judge Garland did on the Oklahoma City bombing.

GWEN IFILL: Well, I certainly don’t have to tell that you saying that you’re open to a meeting is not saying that you’re opening to a hearing or saying that you’re opening to bringing it to a vote on the floor of the Senate.

SEN. AL FRANKEN: I’m — I’m aware of that.

What I was saying is, it represents a softening of their position. It represents movement that happened in the first hours after he announced this nomination. So, that seems to be movement in the right direction.

And I think, you know, the American people have spoken pretty clearly in polls, about 2-1, saying this is a — this is a lousy idea for Republicans not to do what’s in the Constitution, our responsibility in the Constitution, which is provide advice and consent, which we have been doing through hearings since 1916. They refuse to have a hearing, and they refuse to vote on this at their peril.

GWEN IFILL: Senator Franken, you’re a pretty liberal guy. What do you say to progressives who think the president missed an opportunity to make a more liberal pick?

SEN. AL FRANKEN: I think the president made a wise pick.

I — the White House reached out to Democrats on the Judiciary Committee, asked us what kind of nominee we’d like to see. I said, I want somebody who, at the end of the hearings, the American people will say, “I want nine of those to be the Supreme Court. That’s what I would like. I would like nine of those.”

And it seems to me, from everything I know and I have heard about Judge Garland, that you would want nine of those.

GWEN IFILL: Senator Al Franken, Democrat of Minnesota, thank you very much.

SEN. AL FRANKEN: Thank you, Gwen.

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