For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
March 28 — U.S. Supreme Court nominee Merrick Garland's background as a prosecutor has led some to suggest he may carry a pro-government, anti-defense bias with him to the high court if confirmed.
But a political historian and former Garland clerk both agree that the judge's background isn't necessarily a good predictor of how he would approach being a Supreme Court justice.
Analyzing nominees' legal resumes for insight into their political ideologies is a relatively recent phenomenon that sprang from two trends, history professor Mark Byrnes told Bloomberg BNA. First, presidents have been moving away from nominating politicians and advisers to the court. Second, the changing identities of both political parties during the civil rights movement and Vietnam War expanded to include stances for and against compliance with the law, even when those laws seemed immoral.
However, Byrnes said that even if presidents or politicians think they can predict the legal reasoning of nominees, nothing is guaranteed.
Garland's former clerk expressed a similar sentiment regarding the judge, saying Garland will likely act as a moderate and unifying force on a highly divided court.
Byrnes is an associate history professor at Wofford College in Spartanburg, S.C., and blogs about the connections between modern-day politics and American history. He told Bloomberg BNA in a March 25 interview that for decades, presidents nominated politicians and close advisers to the high court.
Byrnes cited two of President Franklin D. Roosevelt's nominees as examples: The 1939 nomination of Felix Frankfurter, Roosevelt's close personal friend and unofficial adviser, and James F. Byrnes, a South Carolina politician who Byrnes explained served in both houses of the U.S. Congress before his 15-month stint as an associate justice and was sometimes referred to as “the assistant president.”
Yet in a span of two decades, Byrnes said presidents shifted from nominating political allies and friends to focusing on nominees with legal backgrounds, such as attorneys or judges.
Negative political and public perception on nominating allies became clear in 1968 when President Lyndon B. Johnson nominated his long-time friend and adviser, Associate Justice Abe Fortas, to replace Chief Justice Earl Warren, Byrnes explained. Johnson faced so much criticism for naming his friend and adviser as chief justice that Fortas and the White House eventually withdrew the nomination, Byrnes said.
In 1968, the general reaction from most politicians and the public was that the judiciary should be treated as a separate branch of government, insulated from political cronyism, Byrnes said.
At the same time, that move away from political nominees left presidents and the public alike trying to guess at how a nominee would reason as a Supreme Court justice, he explained.
“If you've got a voting record or you're signing bills as a governor, it's going to kill you,” Byrnes said of political nominees during the vetting process.
However, Byrnes said attorneys or judges likely don't have a similarly politicized record, or if they did rule on political issues, it is no where near the level of precedent-making discretion enjoyed by the nation's highest court.
“There’s no question in my mind that the movement away from political figures is connected to the idea of increasing partisanship that has crept into the nomination process,” Byrnes said.
At the same time that presidents shifted away from political nominees, Byrnes said the civil rights movement and protests of the Vietnam War in the 1960s and 1970s changed the identity of both parties' platforms.
Much of the tactics employed during both movements hinged on the use of civil disobedience, Byrnes explained. Supporters, usually members of the Democratic party, routinely broke the law—believing segregation and draft laws were immoral, he said.
Part of that political conversation involved the Republican Party defending itself as “the party of law and order,” he said. That debate became integral to both parties' identities moving forward, which Byrnes said made the issue of criminal justice a political touchstone.
“If you're in favor of the prosecutor, this makes you a conservative in favor of law and order,” he said. “If you're in favor of the defendant, you're against it.”
Without a political record, Byrnes said politicians and the public likely began scrutinizing nominees' legal backgrounds, making a prosecution or defense background more significant in the vetting process.
That point is especially salient today in Garland's nomination to replace Justice Antonin Scalia, well-known for his conservative voice on the court.
By naming Garland with his prosecution background, Byrnes said Obama is sending a message to the Republican Party.
“He's saying, ‘This is kind of your guy on some level,'” Byrnes explained. “He's a law-and-order guy. He's a prosecutor.”
Also informative is who wasn't nominated, as well as the circuit from which Garland hails, Byrnes clarified in a follow-up e-mail to Bloomberg BNA on March 28.
Byrnes wrote that many reports suggested that Obama passed over Judge Jane L. Kelly, of the U.S. Court of Appeals for the Eighth Circuit, based on her work as a public defense attorney.
“That brings us back to the idea that being on the ‘right' side of ‘law and order' is seen as inoculating a Democratic nominee, while being seen on the ‘wrong' side (rights of defendants) has become practically disqualifying,” he wrote.
Additionally, Byrnes wrote that Garland's position as a judge for the D.C. Circuit means he lacks a record of controversial opinions outside administrative law.
“Put together the lack of any obviously controversial rulings by Garland due to his D.C. Circuit experience with the presumption that his prosecutor’s background means he is not too ‘left' and you have what in normal political times would be a perfect nominee for a Democratic president to make to a Republican Senate—no obvious disqualifying decisions and a ‘law and order' signifier suggesting he’d be more conservative than the average Democratic president’s nominee,” he wrote. “But, of course, these are not normal times!”
In the wake of his nomination, a narrative formed around Garland—a former DOJ prosecutor who handled both local and federal cases—that his criminal law positions tend to favor government interest.
However, former clerk Jeffrey Bellin—now a criminal law professor at William & Mary Law School—offered a different assessment of Garland's past opinions on criminal law cases to Bloomberg BNA in a March 18 e-mail.
“His methodology of carefully studying the record and legal arguments with an open mind is what sticks out to me,” Bellin wrote. “I think he will approach cases the same way if he is confirmed to the Supreme Court.”
Bellin added that he believed Garland would support “modest steps and narrow opinions” to bring more agreement to the bench that find respect from conservative and liberal justices alike.
“The trademark of a Judge Garland opinion is careful, step-by-step legal analysis,” Bellin wrote. “Even those who come out on the losing side of one of his opinions have no doubt that the judge seriously considered their arguments, had a clear understanding of the facts and law, and decided the case on that basis, rather than in an effort to advance any ideological agenda.”
Byrnes agreed that a prosecution background or a string of political legal opinions don't always indicate a tendency to reason in a strictly conservative or liberal mindset. While Byrnes said presidents from both parties always think they can predict how a nominee is going to rule based on their backgrounds, many presidents end up surprised.
For example, Byrnes said President Dwight D. Eisenhower thought Warren a safe, conservative pick. Instead, he explained, Warren went on to author some of the most liberal opinions of the 20th Century—including those that struck down segregation, affirmed the Sixth Amendment right to counsel, and created today's requirement for Miranda warnings.
Byrnes said the backgrounds of modern-day justices don't always predict how they will rule. He cited Scalia as an example. While Scalia will be remembered as one of the most conservative justices, he often ruled in favor of defendants' rights, which Byrnes said could be “arguably described as liberal.”
“That's just the court,” Byrnes said. “It's always a fiction that you know how someone's going to rule—you really don't.”
To contact the reporter on this story: Jessica DaSilva at email@example.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)