By Lisa Soronen
As promised, President Obama has made his nomination to fill the vacancy caused by death of Antonin Scalia on the U.S. Supreme Court.
If this wasn’t an election year Merrick Garland would be a surprising choice. He is known as a moderate, is older (63), a white male, and has been a judge on the D.C. Circuit Court of Appeals for almost 20 years.
If it wasn’t an election year Senate Republicans would probably be racing to confirm him.
If Judge Garland becomes Justice Garland how might he rule in cases affecting state and local government?
State and local government do not consistently benefit more from liberal or conservative justices. It depends on the issue and the case (and sometimes may not matter at all).
Two other factors may give us a better sense of how he may view the interests of state and local government in cases. They are state and local government experience and previous decisions.
The first factor is, unfortunately, irrelevant in the case of Garland. Before his appointment to the D.C. Circuit Court of Appeals he worked for the federal government and a big law firm.
In 2010 he was on Obama’s “short list” to replace Justice John Paul Stevens. Tom Goldstein, of the SCOTUSblog, reviewed Garland’s decisions in depth. His most notorious decisions, then and probably now, are a vote against Guantanamo detainees, subsequently overturned by the Supreme Court, and a vote to rehear a D.C. Circuit’s decision to invalidate the D.C. handgun ban.
More relevant to state and local government, Goldstein concluded in 2010 that Garland has tended to take a “broader view” of First Amendment rights, which will often not favor state and local government. Goldstein also noted that Garland has “strong views favoring deference to agency decision makers,” which in many cases will not benefit state and local government.
As challenges to the Clean Power Plan and the Waters of the United States regulations work their way to the Supreme Court, Garland’s record on environmental issues is particularly relevant. Goldstein concluded that sometimes Garland has favored the EPA and but noted that in this area Garland “has been most willing to disagree with agency action.”
As Garland’s lengthy judicial record is sifted through more carefully over the next weeks or months we will have a better sense of where he may stand generally and in regard to state and local government.
At this point the question bigger than who is Merrick Garland is whether he will be confirmed. Only time will tell.
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.