Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court Page: 4 of 81
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
O n March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court
of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the
Supreme Court created by the unexpected death of Justice Antonin Scalia in February.'
Judge Garland was appointed to the D.C. Circuit by President Clinton in 1997,2 and is currently
its chief judge,3 an administrative position that rotates among the active judges on the circuit.4
Prior to his appointment to the bench, Judge Garland served in the Criminal Division of the U.S.
Department of Justice (DOJ), where he notably oversaw the prosecution of the 1995 Oklahoma
City bombing case,5 as well as other cases.6 It remains to be seen whether or how the Senate
might proceed in considering Judge Garland's nomination;7 however, his nomination remains
effective until it is withdrawn or this term of Congress ends, whichever occurs first.8
This report provides an overview of Judge Garland's jurisprudence and discusses what the impact
on the Supreme Court might be if he, or a judge of a similar judicial philosophy, were to be
confirmed to succeed Justice Scalia. In attempting to ascertain how the Court's jurisprudence
could be affected if Judge Garland were to fill the vacancy created by Justice Scalia's death,
however, it is important to note at the outset that it is difficult to predict accurately an individual's
service on the Court based on his prior experience for various reasons. Accordingly, a section of
this report entitled "Predicting Nominees' Future Decisions on the Court" provides a broad
context and framework for evaluating how determinative a lower court judge's prior record may
be in predicting future votes on the Supreme Court.
The report focuses on those areas of law where Justice Scalia can be seen to have influenced the
High Court's approach to particular issues, or served as a fifth and deciding vote on the Court,9
with a view toward how Judge Garland might approach that same issue if he were to be
confirmed. The report begins with his views on two cross-cutting issues-the role of the judiciary
and statutory interpretation. It then addresses 14 separate areas of law, which are arranged in
1 See, e.g., Transcript: Obama Announces Nomination of Merrick Garland to Supreme Court, WASH. POST (March 16,
of-merrick-garland-to-supreme-court/. See also CRS Legal Sidebar WSLG1518, Merrick Garland's Nomination to the
Supreme Court: Initial Observations, by Andrew Nolan.
2 See Garland, Merrick B., FED. JUDICIAL CTR., http://www.fjc.gov/servlet/nGetlnfo?jid=820 (last visited April 15,
2016) [hereinafter "FJC Garland"]. Judge Garland was initially nominated to the D.C. Circuit in 1995, but the Senate
did not vote on that nomination. Id.
4 See U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT, HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES, UNITED
STATES COURT FOR THE DISTRICT OF COLUMBIA CIRCUIT, AS AMENDED THROUGH MARCH 1, 2016, 2,
%20Handbook%202006%20Rev%202007/$FILE/HandbookMarch2Ol6Final.pdf (last visited April 20, 2016).
5 See, e.g., Confirmation Hearings on Federal Appointments: Hearings before the Committee on the Judiciary, United
States Senate, Part 2, 104th Congress, 1st sess., 1058 (1995).
6 FJC Garland, supra note 2.
7 See, e.g., David M. Herszenhorn, Senator Grassley and Judge Garland Meet, and Rehash the Obvious, N.Y. TIMES
(April 12, 2016), http://www.nytimes.com/2016/04/13/us/politics/senator-chuck-grassley-merrick-garland-meet.html?
_r=0; Todd Ruger, Grassley: I Haven't Changed My Mind on Garland Hearings, ROLL CALL (April 7, 2016),
8 See S. COMM. ON RULES AND ADMIN., STANDING RULES OF THE SENATE, S. Doc. No. 113-18 (2013) (Rule XXXI),
https://www.gpo.gov/fdsys/pkg/CDOC-113sdocl8/html/CDOC-113sdoc8.htm; CRS Report RL31980, Senate
Consideration of Presidential Nominations: Committee and Floor Procedure, by Elizabeth Rybicki.
9 These areas are noted in CRS Report R44419, Justice Antonin Scalia: His Jurisprudence and His Impact on the
Court, coordinated by Kate M. Manuel, Brandon J. Murrill, and Andrew Nolan [hereinafter referred to as the "CRS
Congressional Research Service
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Nolan, Andrew; Manuel, Kate M. & Murrill, Brandon J. Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court, report, April 27, 2016; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc855856/m1/4/: accessed April 20, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.