Two factors could give us a better sense of how Judge Merrick Garland may view the interests of state and local government in cases: his state and local government experience, and his previous decisions.
If this were not an election year, Merrick Garland would be a surprising choice. He is known as a moderate, he is older (63), he is a white male, and he has been a judge on the D.C. Circuit Court of Appeals for almost 20 years. If this were not an election year, Senate Republicans would probably be racing to confirm him.
His nomination remains an interesting choice, though, and may leave many city leaders wondering how this might affect cities. 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. Whether they do or not depends on the issue and the specific case (which sometimes may not matter at all). Two other factors could give us a better sense of how he may view the interests of state and local government in cases. They are: his state and local government experience, and his previous decisions.
The first factor is, unfortunately, irrelevant in the case of Judge 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, Judge Garland was on President Barack Obama’s “short list” to replace Justice Stevens. Tom Goldstein of SCOTUSblog, reviewed Judge 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 Judge 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, Judge Garland’s record on environmental issues is particularly relevant. Goldstein concluded that, while sometimes Judge Garland has favored the EPA, in this area he has been “most willing to disagree with agency action.”
As Judge 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 regards to state and local government.
At this point, while it may be difficult to predict how Judge Garland will vote, the bigger question is: Will he be confirmed?
About the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.