The National Catholic Review
Merrick Garland is no stranger to the political aspects of judicial confirmation.

On March 16, 2016, President Obama fulfilled the first stage of his obligation under the U.S. Constitution: to fill the Supreme Court vacancy. He nominated the current chief judge of the federal D.C. circuit court, Merrick Garland. Garland was born in Illinois and received his undergraduate and law degrees from Harvard University. He clerked for Supreme Court Justice William Brennan, worked in private practice and served as a federal prosecutor for many years. Most notably he oversaw the Unabomber and Oklahoma City bombing cases. 

Garland is no stranger to the political aspects of judicial confirmation. His first nomination to the federal bench, in 1995, was not voted on due to election-year politicking and disputes regarding the alleged overstaffing of the D.C. circuit court. Nevertheless, he received bipartisan support when re-nominated by President Bill Clinton. Garland is considered a judicial moderate who, absent the election year timing of his nomination, most likely would be confirmed with little controversy. As conservative Senator Orrin Hatch stated in 1997, “I do not believe there is anything in Mr. Garland's record to indicate that, if confirmed, he could amount to an activist judge or might ultimately be an activist judge.” Senator Hatch was right; Judge Garland’s decisions are well-reasoned and constrained. Just three days ago, Sen. Hatch indicated Garland is the type of judge Obama should, but would not, nominate.

The ball is now in the court of the Senate Judiciary Committee, chaired by Senator Chuck Grassley of Iowa, to schedule confirmation hearings on Judge Garland’s qualifications for the position. Senator Grassley issued a press release immediately after the nomination, but stopped short of completely rejecting the possibility of confirmation hearings. Instead he stated, “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.” He then invoked what has been called “the Biden rule,” relying on a 1992 statement made then-Senator Joe Biden regarding a hypothetical Supreme Court vacancy made in mid or late summer of a presidential election year. Biden opined that in such a situation the president “should not name a nominee until after the November election is completed.” Justice Scalia, it should be noted, died in February.

Should the Senate refuse to act, the president is empowered under the constitution to make an interim appointment when the Senate is in recess. The Senate can avoid being in recess, however, by scheduling “pro forma” sessions even when Senators are not in Washington and no work is conducted.  


Ellen Boegel | 3/19/2016 - 12:22pm

Judge Garland has served as a federal judge for 19 years and participated in numerous decisions. Most of these deal with federal regulations and criminal procedure. A full vetting of his writings and speeches will be conducted in the coming weeks if the Judiciary Committee decides to consider his nomination. A preliminary review of his public record, however, indicates he has never stated his opinion on abortion rights, gun control, or sin.

He has ruled on, but did not author, decisions regarding the free exercise of religion. One case went against individuals who wanted to sell T-shirts with religious messages on the National Mall despite a general ban on merchandise sales. The other case ruled in favor of Catholic inmates who wanted to receive the Blood of Christ despite prison regulations that prohibit the consumption of alcohol. Judge Garland held in both cases that the government must give deference to religious practices, but not to every religiously motivated objection to neutral and generally applicable laws. These rulings may explain Judge Garland’s vote to deny a request made by Priests for Life for a rehearing of the decision that rejected their objections to the opt-out notification requirement of the Affordable Care Act. Filling out a notification form, like selling T-shirts, may be related to one’s practice of religion, but is not a uniquely religious practice.

Judge Garland’s decision to vote for a rehearing on the case that proclaimed an individual right to bear arms may have been because he disagreed with the Second Amendment analysis or because he thought such a momentous decision should be issued by the entire circuit court rather than a three-judge panel.

Judge Garland has not published widely outside his judicial decisions. In the 1980’s he wrote two law review articles on antitrust laws that indicate he is, on economic issues at least, a states’ rights advocate. He began one article with this sentence, “Which values are so compelling that, in their defense, we should enlist the federal judiciary to overturn political decisions made in the states?” Unfortunately the article only gives an answer as it relates to antitrust laws, but that answer, which is that legislation should be respected as long as it does not cede authority to the private sector, illustrates a strong, but not unlimited, deference to the legislative process. In short, a moderate position.

Gabriel Marcella | 3/22/2016 - 1:02pm

It would be naive to assume that a Supreme Court nominee who survived vetting by the White House is one who conforms to Catholic teachings on life. Can we believe that the party and president committed to abortion would select a pro-life candidate?

William Rydberg | 3/19/2016 - 10:01pm

Ellen, I think you are missing the point if you expect to inform the decision process based exclusively upon past judicial history. Its about asking whoever is gonna ask the questions of the Nominee (party doesn't matter) to inform their line of questioning at least in part, through a set of well prepared questions from a Catholic perspective...

Lets face it, its really unlikely that the Judge would hear the same issues he's heard on a lower court again.

Forward-looking questions need to be generated that are imbedded with Catholic moral teaching, etc.

America Magazine in my opinion needs to be a spur to the culture.

And let's not be reluctant to look "sectarian" in their eyes, for they already know the source. For no matter how one may facilely claim the opposite. Catholicism is NOT a sect... A lot of Americans are Catholic, they simply want to know...

Launch out in to the deep Roman Catholic America Magazine, get out of your comfort zone. and that comfortless pew..

STOP calling Nominees "MODERATE" because the Secular culture does. Dare to be Catholic...

You may find that an awful lot of people that are not co-religionists have the same questions.

Politics are a changin. get out front... And "sin" is a reality of life, lest you think America no longer needs a Supreme Court.

Just my opinion,

in the Risen Christ,

Elmer Stoup | 3/17/2016 - 4:32pm

This article was a complete waste of time. You didn't tell us anything specific about what type of rulings we might expect. Given the left-leaning stance of America mag, "moderate" most likely means he's anti-life and anti-2nd Amendment. Creighton Prep grad

Gabriel Marcella | 3/17/2016 - 2:15pm

One wonders what a judicial moderate means, beyond the mantra being broadcast by the media. According to the terminology of modern politics, pro-life is now considered no longer moderate. How sad. America should explore what his position on pro-life is. You have an obligation to your readers to clarify it instead of avoiding the issue. Go forth, be bold, and ask the tough questions.

William Rydberg | 3/17/2016 - 8:27am

All this Analysis/Commentary and not one word about the consistent life ethic, which is neither a religious or political ideology.

Although the Nominee is not a coreligionist, some mention of Catholic Moral Teaching Principles as well as the Catholic concept of Subsidiarity and where it resides regarding Federal & States Rights would normally be welcome in a Catholic Magazine run by a Catholic Religious Order.

For example how does the Judge reconcile sin and what is legal under American law? An example would be on the subject of legal tax avoidance. (Remember that Judaism is the foundation of our mutual Religion).

It's OK to judge from a Catholic Moral Teaching perspective, as America Magazine is not a Secular Institution...

It's also an Election year, and all Catholics are entitled to their Constitutional and God Given voice, America seems mute on this score.

Our ultimate Judge is Jesus-God come in the flesh, Catholic moral teaching needs to be mentioned-think of what's coming up on the "docket" in the future. Yet not a syllable on this important criterion..

One recognizes that it's early days yet. Here's hoping that America Magazine does its job and engages on this important issue from the Catholic perspective. Hopefully no mute watchers at America Magazine going forward.

Finally, it's baffling to me why Roman Catholic America Magazine would port the Secular descriptor judicial "MODERATE" without first looking in some depth at the legal history of any of the Nominee's past rulings relative to Catholic Moral Teaching. Truth is not relative. Call it from the Catholic perspective, not the Secular perspective in this Roman Catholic, Jesuit Magazine.

Just my opinion...

in Christ,

St Patrick pray for us sinners☘☘☘

Elmer Stoup | 3/17/2016 - 4:38pm

Amen. There's nothing in America that can't be found in any liberal magazine. Why bother subscribing?? Creighton Prep grad

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