Blind Spots at D.C. Circuit Limit Garland's Record

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By Kimberly Strawbridge Robinson

March 22 — Since President Barack Obama nominated Chief Judge Merrick B. Garland to the U.S. Supreme Court March 16, the descriptions of the D.C. Circuit judge have varied from “a centrist candidate” to “a reliable fifth vote for a laundry list of extreme liberal priorities.”

Who's right? Well, the “best way to get a handle on a circuit judge's judicial philosophy is to look at the judge's concurrences and dissents,” Jonathan Adler, of Case Western University School of Law, Cleveland, wrote March 21 on The Volokh Conspiracy blog.

While Garland's rare dissents can give deeper insight into that philosophy, they won't give a complete picture of the kind of justices that he will be if confirmed.

That's because the “D.C. Circuit has a narrow, technical docket, so no judge on that court has taken a position on every issue that might arise at the Supreme Court,” Brian Netter, an appellate partner at Mayer Brown LLP, Washington, told Bloomberg BNA March 18.

There are “blind spots” on the D.C. Circuit in general, and with Garland in particular, Adler told Bloomberg BNA.

Notably Infrequent

Nevertheless, “Garland has had countless opportunities during his tenure to demonstrate his approach to the law,” Netter said. “His opinions reflect a judge who views the judicial role as modest and who favors consensus-building wherever possible,” he said.

The best way to see that approach is through Garland's dissents, Adler said.

“When a judge writes alone, there is little need to accommodate others,” Adler's March 21 blog post said. “The judge can say just what he or she thinks about the case,” he said.

“When a judge writes a panel majority, on the other hand, there is often a need to soften edges and bridge differences to accommodate the views of all those who sign on,” Adler said.

Garland's dissents “reflect the same careful, balanced approach as his majority opinions,” Netter said.

But he said one of the most notable things about Garland's dissents “is how infrequent they are. Chief Judge Garland has a knack for forging unexpected coalitions, so he rarely needs to write separately,” Netter said.

In fact, Garland has written less than one dissent each year that he has been on the bench, Adler told Bloomberg BNA. In his 19-year tenure, he penned only 16 dissents, he said.

Pro-Agencies, Prosecution

Aaron Nielson, of Brigham Young University Law, Provo, Utah, recently collected all of those dissents in a blog post for the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice.

“Garland's dissents seem to be pretty consistent with the conventional wisdom about him,” Nielson told Bloomberg BNA. Garland is “generally deferential to federal agencies,” and “sometimes dissents from decisions favoring criminal defendants,” he said.

But while dissents can be helpful, they shouldn't be over-read, Adler cautioned.

As a circuit court judge, Garland might feel constrained by precedent, he said. Garland may be more willing to push the envelope if confirmed to the Supreme Court, Adler said.

Blind Spots

Moreover, Garland's dissents won't shed light on how he will approach certain high-profile issues at the court because the D.C. Circuit just doesn't deal with some issues very frequently, Adler said.

The D.C. Circuit only has geographical jurisdiction over the District of Columbia, but it also has exclusive statutory jurisdiction over many agencies' regulations and actions.

One obvious blind spot for the D.C. Circuit then is cases dealing with the validity of state legislation, Adler said.

This term, one of the most controversial cases at the Supreme Court is one looking at the constitutionality of Texas's abortion regulations, Whole Woman's Health v. Hellerstedt, U.S., No. 15-274, argued 3/2/16. But the D.C. Circuit's caseload is devoid of abortion cases.

On the day Obama nominated Garland, anti-abortion group Susan B. Anthony List said in a statement, “We do not know this nominee”—referring to Garland's views on abortion.

Similarly, pro-abortion rights group NARAL said in a statement, “Garland does not have a public record on reproductive rights.”

Other blind spots include the death penalty, immigration cases, run-of-the-mill diversity jurisdiction cases and federalism/preemption cases, Adler said.

Liberal Souter?

With regard to abortion, NARAL suggested that confirmation hearings—which Senate Republicans have so far vowed not to have—might help shed light on how Garland thinks about the issue (84 U.S.L.W. 1333, 3/17/16).

But Adler said that's unlikely. These days, nominees “spend as much time as possible saying as little as possible” during confirmation hearings, he said.

That doesn't mean the country will go into a Garland-era Supreme Court totally blind, though, Adler said.

In particular, he said he doesn't think Garland will flip to the conservative side and turn out to be a sort-of liberal Souter, referring to Republican President George H. W. Bush's nominee Justice David Souter, who became a reliable part of the court's liberal bloc.

Unlike Souter, Garland has been involved in multiple Democratic administrations, presumably because he supports those policies, Adler said.

So while there remains some uncertainty about how he might think about certain issues, Garland is likely to side with the court's more liberal justices more often than not, Adler said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com