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MERRICK GARLAND Printer Friendly Page

Green Justice: A Glimpse at How Obama’s SCOTUS Pick Would Likely Rule on EPA Cases on the High Court
By Fred Lucas
March 17, 2016

Who Is Merrick Garland? The Complete Legal Résumé
By Tom Goldstein
March 16, 2016

Obama Scotus Pick Is Anti-gun Zealot
By Daniel John Sobieski
March 17, 2016

 


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Merrick Brian Garland was born to Jewish parents in Chicago on November 13, 1952, and grew up in Lincolnwood, Illinois. He earned a bachelor's degree from Harvard College in 1974 and a JD from Harvard Law School in 1977. After completing his education, Garland worked as a law clerk for U.S. Second Circuit Court of Appeals Judge Henry Friendly (1977-78) and Associate Supreme Court Justice William Brennan (1978-79); special assistant to the U.S. Attorney General (1979-81); a private-practice lawyer (1981-89, 1992-93); Assistant U.S. Attorney for the District of Columbia (1989-92); Deputy Assistant U.S. Attorney in the Justice Department's Criminal Prosecutions Division (1993-94); Principal Associate Deputy U.S. Attorney General (1994-97); and a judge in the U.S. Court of Appeals for the District of Columbia Circuit (1997-present). Garland has also taught antitrust law at Harvard Law School, and co-chaired the District of Columbia Bar's administrative law section.

As
Deputy Attorney General, Garland supervised the prosecution of “Unabomber” Ted Kaczynski in the 1990s, and he managed the investigation of the deadly 1995 Oklahoma City bombing.

According to TheBlaze.com, “During his time on the D.C. Circuit Court of Appeals ... Garland has stood with the EPA [Environmental Protection Agency] in nearly every case.... [He] not only ruled in favor of the EPA—and in some cases the environmental lobby—but he also typically wrote the court’s opinion. Further, he was occasionally the lone dissenter in rulings that went against the EPA or the environmental lobby.” Some examples:

  • In 1999, Garland sided with the EPA in a challenge to the Resource Conservation and Recovering Act, a law authorizing that Agency to fully control “the generation, transportation, treatment, storage, and disposal of hazardous waste.”

  • In Whitman v. American Trucking Association (2001), in which the trucking lobby and three U.S. states challenged the EPA's National Ambient Air Quality Standard, Garland sided with the EPA .

  • In American Corn Growers Association v. EPA (2002), Garland dissented in a 2-1 court ruling that struck down a number of EPA “anti-haze” regulations which placed an enormously heavy burden on businesses to cut emissions. While Garland argued that the Clean Air Act expressly authorized the EPA to make judgments regarding pollution reduction, the majority held that the regulations in question required businesses to “spend millions of dollars for new technology that will have no appreciable effect” on air quality.

  • In 2003, Garland voted to uphold the federal government's application of the Endangered Species Act to the arroyo toad, and the government's claim that the U.S. Constitution's Interstate Commerce Clause authorized the EPA to protect the toad even though it lived in only one state, California. Judge John Roberts, who was then serving on the same court as Garland, challenged the logic of Garland’s opinion by questioning how “a hapless toad that, for reasons of its own, lives its entire life in California” could be a legitimate concern for federal commerce regulation.”

  • In Sierra Club v. EPA (2004), Garland sided with the environmental lobby against the Bush administration EPA's effort to delay the enforcement of ozone standards in Washington, DC.

  • In National Parks Conservancy Association v. Manson (2005), Garland voted to give environmental advocacy groups standing to challenge the authorization of a new power plant.

  • In Cement Kiln Recycling Coal v. EPA (2007), Garland voted to reject an industry challenge to rules that regulated the burning of hazardous waste for fuel.


Garland has also rendered noteworthy decisions in the area of gun rights. In 2000, for instance, he voted to uphold what
National Review Online (NRO) calls “an illegal Clinton-era regulation that created an improvised gun-registration requirement.” Though Congress had banned federal gun-registration mandates 32 years earlier, the Clinton administration nevertheless made it a practice to retain, for six months, the National Instant Background Check System's (NICS) records of lawful gun buyers. “By storing these records,” says NRO, “the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background-check records for law-abiding citizens.”

In 2007 Garland supported a
motion seeking a reconsideration of a D.C. Circuit Court of Appeals decision to strike down parts of the District of Columbia’s highly restrictive gun-control law (which prohibited city residents from even keeping guns in their homes for self-defense, and which the Court had originally deemed incompatible with the Second Amendment). Author and attorney Dave Kopel opined that Garland's vote was “no surprise, since [he] had earlier signaled [his] strong hostility to gun-owner rights” in a previous case. Alan Gottlieb of the Second Amendment Foundation, for his part, said that “the only reason” why Garland supported the 2007 motion was because he wished “to overturn the pro-Second Amendment ruling.” A number of years later, Chris Cox, the head of the National Rifle Association's lobbying arm, said that “a basic analysis of Merrick Garland’s judicial record shows that he does not respect our fundamental, individual right to keep and bear arms for self-defense.”

Among Garland's additional key rulings are the following:

  • In 2003, Garland joined a D.C. Circuit Court opinion prohibiting terrorist prisoners in Guantanamo Bay from appealing their cases in civilian courts—a decision that the Supreme Court would subsequently overturn.

  • In 2008, Garland authored the majority opinion overturning a Combatant Status Review Tribunal's ruling that a particular suspect who was said to be affiliated with an Islamic terror group could be detained as an “enemy combatant” and tried in a military tribunal rather than in civilian court.

  • That same year, Garland participated in a unanimous panel opinion invalidating Federal Election Commission regulations for being insufficiently stringent in implementing the McCain-Feingold campaign-finance-reform bill, whose purpose was to: (a) put restrictions on paid advertising during the weeks just prior to political elections, and (b) tightly regulate the amount of money that political parties and candidates could accept from donors.

  • In Saleh v. Titan Corp. (2009), Garland dissented from a court panel's decision to bar Iraqi victims of abuse at Abu Ghraib prison from suing American military contractors who had permitted and/or participated in the wrongdoing. In short, Garland rejected the notion that military and federal executive officials should have exclusive authority to adjudicate and punish, under federal law, the transgressions of personnel working for them during wartime.

 

In a March 2016 column in The Wall Street Journal, National Federation of Independent Business (NFIB) president and CEO Juanita Duggan described Garland as highly antipathetic toward small business and, conversely, extremely supportive of big labor unions. “[I]n 16 major labor decisions of Judge Garland’s that we [NFIB] examined,” said Duggan, “he ruled 16-0 in favor of the NLRB [National Labor Relations Board].” “Elsewhere in the Journal,” noted syndicated columnist Dennis Prager, “the editorial board wrote that they can’t think of a single issue on which Garland would vote differently from the four liberal Justices that already sit on the bench.”

Also in March 2016, President Barack Obama nominated Garland to replace the recently deceased Justice Antonin Scalia on the U.S. Supreme Court.

 

 

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