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Obama’s Supreme Court nominee is a safe choice rather than anyone destined to be a major civil liberties champion

Highly-rated Fairfax Criminal Defense lawyer's take on the orthodoxy of nominating Merrick Garland to the Supreme Court

Mar 16, 2016 Obama’s Supreme Court nominee is a safe choice rather than anyone destined to be a major civil liberties champion

In nominating Judge Merrick Garland today to the Supreme Court, President Obama has placed orthodoxy, practicality, and safety for a greater chance at an approved nomination, above the possibility of nominating perhaps the first criminal defense-experienced lawyer to the bench, for instance through previously short-listed federal appellate Judge Jane Kelly.

Garland is a safe choice in the face of a Republican-controlled Senate with many of them having vowed to prevent an Obama nominee from joining the court, starting from his college and law school (Harvard, with high grades at both stages); followed by his obtaining one of the most prestigious federal appellate court clerkships, with Judge Henry Friendly; serving as a Supreme Court law clerk (with my hero William Brennan, who can be a target among the conservative set); getting quick partnership at probably one of the five best large D.C. law firms, that I would have loved to have worked at before becoming my own boss (Arnold & Porter, which was previously known as Arnold, [Justice Abe] Fortas & Porter); becoming a federal prosecutor in George Bush, I’s administration; becoming chief judge on the D.C. Court of Appeals, the most prestigious federal appellate court for a stepping stone to the Supreme Court; and becoming so reliable for picking and well-training the right law clerks that forty of them were next hired as Supreme Court law clerks.

Judge Garland likely is a better choice than anyone a Republican president would pick, but I do not expect him to thrill me. I anticipate that he will generally be grouped with the current so-called four most liberal justices (Justices Ginsburg, Breyer, Sotomayor and Kagan, but that he will be close to the mold of his fellow Harvard Law School alum, and former Harvard Law School dean, Justice Elena Kagan, who clerked for liberal Justice Marshall, but is much more moderate than Marshall on the bench. Perhaps a justice Garland would be closer to Justice Breyer, since they both heavily defer to federal regulatory authority, for instance with Judge Garland’s having in 2012 deferred to the DEA’s off-base assessment of marijuana’s dangers in a challenge to marijuana’s remaining listed among the most dangerous categories of drugs. During oral argument, Judge Garland asked “Don’t we have to defer to the agency?” … We’re not scientists. They are.”. To the contrary, the DEA is a bias-filled politicized federal law enforcement agency.

The very thought that a justice Garland would create a solid five-justice non-conservative Supreme Court voting bloc probably is enough for many Republican senators to engage in pitched battle against him, and to maneuver as best they can to have the current Supreme Court vacancy filled by the next president.

President Obama had a chance to make a breakthrough civil liberties-friendly nomination with his previous short-lister Jane Kelly, who was for two weeks in my eight-lawyer section at the 1994 Trial Practice Institute of the National Criminal Defense College. As much as she has been described as moderate, at least Judge Kelly has substantial criminal defense experience, serving indigent clients as a long well-respected federal public defender. Although Judge Kelly is Obama’s Harvard Law School classmate and has the resume distinction of a prior federal appellate judicial clerkship and a current appellate judgeship, Judge Garland will more impress and comfort those who are impressed and comforted by orthodox paper credentials., and he also has far more appellate judging experience and a longer paper trail than Judge Kelly.

Whether or not Judge Garland is also compassionate (I have never appeared before him, having argued three appeals before his court), Jane strikes me as compassion personified, and I take it that she is skilled at building consensus among her fellow judges, considering how widely praised she is by judges before whom she has appeared and by her Iowa home state’s Republican Senator and Judiciary Committee chair Chuck Grassley. Of course, Grassley today proclaimed about Obama’s nomination of Judge Garland:  “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year…” In a likely presidential battle between Donald Trump and Hillary Clinton, such Republican stalling may lead to voter backlash against likely GOP presidential candidate Trump, but of course Hillary Clinton is not prize, either, but less scary than Trump in the presidency.

Those who want safe routes to federal judgeships will try to mirror the steps of Judge Garland. Then there is Jane Kelly, who has the resume to have been able to leave the federal public defender’s office in Iowa after just a few years and make much more money at a corporate law firm, but who instead stayed many years with the public defender’s office in her small state, even after she was brutally assaulted while running one day.

Had the Senate been Democratically controlled, perhaps President Obama would have chosen Judge Kelly or another nominee with substantial criminal defense expereience, or maybe he mainly short-listed Judge Kelly due to her having been previously championed by Senator Grassley and having quickly sailed through with her nomination to the federal court of appeals. Whoever is the next new Supreme Court justice, the new justice will be expected to outlast at least a few presidential administrations.

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