Merrick Garland Is a Deft Navigator of Washington’s Legal Circles
By SHERYL GAY STOLBERG, MATT APUZZO and KATHARINE Q. SEELYEMARCH 26, 2016
Merrick B. Garland, President Obama’s selection for the Supreme Court. He calls himself “an accidental judge,” because he was once in line for a top Justice Department position. Credit Doug Mills/The New York Times
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...it became clear over time that Mr. Garland was silently working out his arguments, processing facts and testing alternatives. Surrounded by overachievers in a city full of people clamoring to be heard, he was waiting until he had something to say.
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“The essence of who you are is who you are at an early stage,” said Abbe D. Lowell, a Washington lawyer who worked alongside Mr. Garland as a fellow assistant to Mr. Civiletti. “Not only is he book smart, but he’s really able to use all of that intelligence to forge consensus.”
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“I don’t think he was ever viewed in a particular camp,” Mr. Chertoff said. “He was a legal craftsman. He was not an agenda-driven person.”
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Some aides tried to use their access to push ideological agendas with the attorney general.
“That wasn’t Merrick,” Mr. Civiletti recalled in an interview. “He was interested in getting the right answer.”
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Even though he was not skilled, Ms. Coleman, a Republican, loved dancing with him because he “smiled so much.”
In the office, he and the other young assistants were mentored by a colorful figure, Victor H. Kramer, counsel to the attorney general. Mr. Kramer had spent more than a decade at the corporate law firm Arnold & Porter before quitting to help provide legal services for the poor. He urged lawyers to work in public service.
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...he also found a way to get the best out of people and was quick to give others credit.
Years later, he told interviewers: “I like legal problems. I like learning about legal problems. I like cooperating with others in figuring out legal problems.”
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Rather than have them write long memos for him, as is the custom of many other judges, he insists on doing his own research, for fear that he might miss some nuance or the finer points of an argument. Then, he said: “We just argue it out. I pick clerks who can say no to me, in a nice way — who can say, ‘That’s wrong, judge, and this is the reason why.’”
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On the bench, he is a tough questioner. “He would often come back from oral arguments and his first question to us would be, ‘Do you think I went too far out there? Do you think I was too rough?’ ” said one former clerk, Danielle Gray. “We all thought, ‘You could not have been nicer in asking these very tough questions.’”
What two legal scholars learned from studying 70 years of Supreme Court confirmation hearings
The Conversation 21 Mar 2016 at 06:32 ET .. nudge ..
We show that confirmation hearings give the American people – all of us – a much-needed opportunity to talk about our Constitution and hear whether potential Supreme Court justices agree with our core beliefs about what it stands for. If the nominees turn out to hold views outside of our shared understanding, they should not be confirmed. If we deem their constitutional views acceptable, however, they deserve serious consideration for the high court.
In our system, the confirmation hearings are the place where constitutionalism meets democratic self-government. That is why it is in the best interest of American democracy to hear what Judge Garland has to say.
There was no filibuster of Robert Bork. He was given a vote on the floor of the Senate and defeated 42-58. There was no filibuster of Clarence Thomas even though one could have been theoretically sustained considering that he only received 52 votes to be confirmed as a Justice to the Supreme Court. In both cases, the Democrats granted their unanimous consent to a motion to proceed to a full confirmation vote. However, there is no possibility that there will be unanimous consent to proceed to a similar vote on the nominee President Trump announced tomorrow night at 8pm. Democratic Sen. Jeff Merkley, for one, will exercise his right to object.
The best precedent for this happened when John Kerry objected to proceeding to a vote on Samuel Alito, but his effort went down to defeat and Alito was confirmed with 58 votes, which was less than the 60 needed to overcome a filibuster. If those Democrats who refused to confirm Alito had refused to allow a vote at all, he would likely not be on the Supreme Court today.
I say “likely,” because it’s possible that the Republicans would have responded by invoking the so-called Nuclear Option and taking away the minority party’s right to stop a vote on Supreme Court nominees. It’s hard to say if that would have happened back in 2005, but it seems more certain that it will happen this time around.
Before I get to that, though, it should be kept in mind that this nomination will be unusual in at least two important respects. First, it is only happening because the Republicans blocked any consideration of Merrick Garland, President Obama’s nominee to replace Antonin Scalia. That move was unprecedented and has invited payback in kind. The second reason is that this nomination will be made hastily without the normal consultation and (tacit) approval of the Senate minority’s leadership. It’s not unusual for the minority to make a big fuss about opposing a Supreme Court nominee, but they usually have the ability to veto really radical appointments by threatening to filibuster them. In the end, for example, John Roberts was seen as acceptable by Democratic leaders even though they didn’t want him on the Court. Alito was a much closer call, which is also why he’s the best precedent for what we’re about to see. In the case of Bork, the Democrats’ warnings were ignored, but they were able to defeat him outright without resorting to procedural tactics.
As for the Republicans, they also signaled (quietly) that Sonia Sotomayor and Elena Kagan would be acceptable to them. The result has been that both parties have been able to put (respectively) liberal and conservative Justices on the Court, but they’ve had to restrain themselves somewhat in their choices. Again, Alito pushed the envelope in this respect further than it had been pushed before.
In this case, no real effort has been made to prevent a filibuster, which is the same as inviting one. That can only mean that the administration’s expectation is that the Senate will invoke the nuclear option and do away with the filibuster for Supreme Court nominees.
This will, of course, cause a massive uproar and it will drown out all the things people are talking about today, from the Muslim immigration ban to putting Steve Bannon on the National Security Council to the Russian question to the wall on the Mexican border to the threat of war over Taiwan with China to Trump’s inability to discern the difference between reality and fantasy.
Maybe that’s half the point, especially because conservatives are so motivated over this Supreme Court appointment that they’ll set aside everything else to fight for it.
I don’t have any great advice for how to prevent people from getting distracted other than to point out that people are at risk of getting distracted.
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