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Merrick Garland: Where Does Supreme Court Pick Stand on Guantánamo, Death Penalty, Abortion?

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As Democrats and Republicans gear up for a battle over whether the Republican-controlled Congress will hold hearings to consider President Obama’s Supreme Court nomination of Judge Merrick Garland, we take a look at Garland’s judicial record. Merrick Garland is the chief judge for the U.S. Court of Appeals for the D.C. Circuit. He was named to his current post by Bill Clinton in 1997, winning confirmation from a Republican-led Senate in a 76-23 vote. Prior to that, Garland worked in the Justice Department, where he prosecuted the Oklahoma City bombing case. Garland is widely viewed as a moderate judge, who he has received bipartisan support in the past. With the nine-member Supreme Court now evenly split with four liberal and four conservative justices, Garland could tilt the court to the left for the first time in decades. But some organizations have expressed concern that his record on certain issues, including abortion rights, is unclear. To examine his views, we are joined by Terry O’Neill, president of the National Organization for Women, and Ian Millhiser, author of the book “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH:After weeks of speculation, President Obama has announced his nominee to replace the late Justice Antonin Scalia on the Supreme Court.

PRESIDENT BARACK OBAMA: I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, evenhandedness and excellence. These qualities and his long commitment to public service have earned him the respect and admiration of leaders from both sides of the aisle. He will ultimately bring that same character to bear on the Supreme Court, an institution in which he is uniquely prepared to serve immediately. Today I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

AMY GOODMAN: Republicans have vowed to block the nomination of Judge Merrick Garland. Senate Majority Leader Mitch McConnell said the Senate will wait until a new president is in place next January before even holding a hearing on a nominee.

MAJORITY LEADER MITCH McCONNELL: President Obama made this nomination not—not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election.

AMY GOODMAN: President Obama criticized Republicans for threatening not to hold confirmation hearings.

PRESIDENT BARACK OBAMA: It is tempting to make this confirmation process simply an extension of our divided politics—the squabbling that’s going on in the news every day. But to go down that path would be wrong. It would be a betrayal of our best traditions and a betrayal of the vision of our founding documents.

NERMEEN SHAIKH: Many analysts say Obama chose Judge Garland to make it harder for Republicans to outright reject him without facing a political backlash. Merrick Garland is the chief judge for the U.S. Court of Appeals for the D.C. Circuit. He’s widely viewed as a moderate judge who has received bipartisan support in the past. He was named to his current post by Bill Clinton in 1997, winning confirmation from a Republican-led Senate in a 76-to-23 vote. Prior to that, Garland worked in the Justice Department, where he prosecuted the Oklahoma City bombing case. At 63 years old, Garland is the oldest Supreme Court nominee in four decades, a move some consider a concession by President Obama. The nine-member Supreme Court is now evenly split with four liberals and four conservative justices. Garland could tilt the court to the left for the first time in decades, though some organizations have expressed concern that his record on certain issues, including abortion rights, is unclear. On Wednesday, Merrick spoke briefly about his legal views.

JUDGE MERRICK GARLAND: Fidelity to the Constitution and the law has been the cornerstone of my professional life, and it is the hallmark of the kind of judge I have tried to be for the past 18 years. If the Senate sees fit to confirm me to the position for which I have been nominated today, I promise to continue on that course.

AMY GOODMAN: For more, we’re joined by two guests. Terry O’Neill is president of the National Organization for Women. NOW released a statement on Wednesday calling Judge Garland, quote, “a real nowhere man.” And we’re joined by Ian Millhiser, senior fellow at the Center for American Progress Action Fund and the editor of ThinkProgress Justice. He’s the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

We welcome you both to Democracy Now! Ian Millhiser, why don’t you review his record? Talk about Judge Garland, what he is known for, the decisions that he has made.

IAN MILLHISER: Sure. I mean, he is definitely to the left of center, but, you know, I think it’s accurate to call him a fairly centrist judge. He comes from a long-standing progressive tradition of judicial restraint that really stretches back to the Roosevelt administration. And what that means is that as a justice, I think that he is likely to want the courts to do much less than conservatives have wanted them to do in the last seven years over the course of Obama’s presidency. A big reason I think that Obama probably picked Garland is because Obama has spent his presidency being harassed by lawsuits, and I think he’s tired of that. He wants a little more judicial restraint. What it means if Garland is confirmed is that the sort of aggressive judicial activism we’ve seen over the last seven years probably gets halted. It also means, however, that some things that liberals might want from the court, they’re probably not going to get from Judge Garland.

AMY GOODMAN: Well, talk about some of his key decisions.

IAN MILLHISER: Well, I mean, I think that since he’s a judge on the D.C. Circuit—the D.C. Circuit’s primary role is reviewing the regulatory actions of federal agencies. And there, he’s been fairly deferential, and generally deference to federal agencies is something that’s going to be good for the party that wants to be able to govern.

Two areas where he has shown a strain of conservatism: He is a federal prosecutor, and he does tend to be more conservative than other Democratic appointees on criminal justice; there’s also a Guantánamo Bay opinion where he sided with the Bush administration. It’s worth noting that the precedents that were in place at the time of that opinion were not good precedents. They were written in haste. They go back to World War II. And so, some people have defended him by saying that he was just following precedents. But he was also reversed by the Supreme Court, and he was reversed to his left. So, you know—

AMY GOODMAN: And explain what he ruled.

IAN MILLHISER: Sure. So there was a question then dealing with whether or not Guantánamo Bay detainees were allowed to go to civilian courts or whether they had to go through the military tribunal system. He joined a ruling saying that they had to go through the tribunal system. At the—I believe he relied on a World War II precedent called Eisentrager, which is not a great decision. And that—and then his opinion was reversed by the Supreme Court five to four in the Rasul case.

NERMEEN SHAIKH: And, Terry O’Neill, your organization, the National Organization for Women, has called Judge Garland a “nowhere man.” What are some of the concerns that you have about Judge Garland?

TERRY O’NEILL: You know, Amy, we don’t know where Judge Garland stands on some key issues for women. And this, actually—this concern actually sort of predates the nomination of Judge Garland. For a long time, it seems, presidents have decided that they must nominate people that we don’t have much of a record on.

I think it’s time for us to take a step back and look at values. President Obama is absolutely right: You want to put a person on the Supreme Court who has impeccable credentials, who is—who really, truly has a strong intellectual capability and a record of excellent performance. But we also need justices on the Supreme Court who will uphold the values that this country stands for—equality, a recognition of basic human rights, expansion of voting and political engagement for all of our citizens. If—we need to have some assurance that those values are held by the Supreme Court nominee. And this is what I was getting at when I said, OK, so, “Nowhere Man” from The Beatles, a little quote there. But my point is that we don’t know.

I also think it’s important to have more diversity on the Supreme Court. I have joined with other women’s—women of color organizations. NOW has joined in calling for the appointment of an African-American woman. There are many highly qualified African-American women that could fill that seat.

NERMEEN SHAIKH: And, Terry O’Neill, what have you heard or what do you know about the position that Judge Garland has taken on women’s issues?

TERRY O’NEILL: Honestly, Amy, I just don’t know. We are obviously digging into it now, and we are trying to find out. But let’s be clear: The United States Congress, certainly the House of Representatives, has been very aggressive at trying to block women’s access to basic healthcare. We know that state after state after state is not only going after basic reproductive healthcare, but in another area, states are suppressing the vote. It turns out when you target communities of color and immigrant communities and older people and younger people to suppress the vote, women are disproportionately impacted by that. So there’s a range of issues that are coming, that have been before the Supreme Court, are going to be before the Supreme Court, that dramatically impact women. And we are trying to dig through and find out what we can about Judge Garland on those issues.

AMY GOODMAN: Actually, Terry, Nermeen asked you those questions. But I did want to ask Ian Millhiser, how is it—I mean, isn’t he the longest-reigning judge of any—


AMY GOODMAN: —Supreme Court justice, any Supreme Court justice ever did—what was he? Eighteen years on the bench? It’s interesting that there is no record of his stand on women’s reproductive rights.

IAN MILLHISER: Right. I mean, I actually don’t think that’s unusual. I mean, big abortion cases are not very common in the federal courts. Most federal court of appeals judges will go their entire career, never hear an abortion case. You know, this issue we have coming up now that’s now in front of the Supreme Court again, dealing with whether or not women’s bosses get to decide if they have access to birth control, that’s a fairly new issue. That issue really didn’t exist in the federal courts five years ago. And so, most federal judges just haven’t heard those sorts of cases, either. There was a case in the D.C. Circuit, but Garland was not on that panel. So, I mean, I don’t think that it would be fair to accuse him of being evasive. When you’re a U.S. court of appeals judge, you are randomly assigned to panels, and I believe a computer does it. And if there was an abortion case that came up during his tenure, he just wasn’t randomly assigned to the panel. It’s fair to say that we don’t know as much about him as we might want to know, because he wasn’t randomly assigned to it. But I think that this is just simply a creature of the fact that those cases aren’t particularly common, they’re randomly assigned, and Garland didn’t draw that straw.

AMY GOODMAN: He’s most well known for overseeing the prosecution and investigation of the Oklahoma City bomber Timothy McVeigh, which would put him also on the side of the death penalty?

IAN MILLHISER: Potentially, yes. Now, a lot has happened in the death penalty since then. There’s a lot of new concerns that have been raised about not just racial profiling in the death penalty, but about the method we use to execute people and whether it amounts to torture. You know, Hillary Clinton said the other night that she supports the death penalty for someone like Timothy McVeigh, but she thinks that the states shouldn’t be using it. So, you know, there are nuanced positions between total abolitionism and using it with the frequency that we use it now. And I could only speculate, based on his record, whether he would join some of the more nuanced cases saying, for example, that lethal injection is too cruel—is too cruel a method of execution and shouldn’t be used, or that there need to be more protections to prevent race from playing the role that it does right now.

NERMEEN SHAIKH: And, Ian, since Judge Garland has had largely bipartisan support 'til now, what do you make of President Obama's decision to nominate him?

IAN MILLHISER: I think there’s two things at play. I mean, one is simply that I think this is the person that Obama wanted. You know, Obama believes in judicial restraint. I think that his experience as president has enhanced that belief. And this is someone who aligns with what Obama believes.

I also think there’s a strategic play here, which is that as it becomes clearer and clearer that Senate Majority Leader McConnell’s position is that Donald Trump should get to pick the next Supreme Court justice and not Barack Obama, the fact that Obama has offered a very moderate, very reasonable guy, who’s had a lot of bipartisan support, I think the White House is hoping that that puts Republican senators in a box, and it might be possible to peel some of them off. I don’t know if I necessarily agree with that calculation, but I think that’s part of the calculation, is he thinks that, faced with constant attacks, pointing out that their position is Donald Trump should pick the next Supreme Court nominee, eventually, he thinks, some of them are going to buckle.

AMY GOODMAN: Prior to his time as federal judge, Merrick Garland served as a prosecutor in the Clinton Justice Department, as we said, overseeing the prosecution of Timothy McVeigh. That was April 19, 1995, killing 168 people. Merrick Garland spoke about the case on Wednesday.

JUDGE MERRICK GARLAND: Years later, when I went to Oklahoma City to investigate the bombing of the federal building, I saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances and instead takes matters into his own hands. Once again, I saw the importance of assuring victims and families that the justice system could work. We promised that we would find the perpetrators, that we would bring them to justice and that we would do it in a way that honored the Constitution. The people of Oklahoma City gave us their trust, and we did everything we could to live up to it.

AMY GOODMAN: Ian Millhiser, if you can talk about now the politics of what’s going to happen, the whole issue of who will meet with him, who won’t? Senator Grassley, who’s going to come under a lot of pressure because he’s up for re-election this year, has said he will meet with him. Mitch McConnell spoke to him on the phone but says he will not meet with him. Talk about precedent for this.

IAN MILLHISER: Well, this is completely unprecedented. A third of all presidents have had someone confirmed during the last year of—the last year of their presidency to the Supreme Court. This idea that there’s some sort of rule that you are less—that Barack Obama is less the president because he’s in his last year, that’s something that hasn’t existed before. And Mitch McConnell has said that he will not guarantee the next president’s nominee a vote, depending on who that president is. So what’s really going on here is that the rule that the Senate Republicans want to set is that you don’t get your nominee confirmed if you are a Democrat.

The question is whether they’re going to be able to hold to that. And, you know, there’s going to be a lot of silly dances going on. You know, who’s going to meet with him? Who’s going to not meet with him? Is he going to get a hearing? Is he not going to get a hearing? At the end of the day, though, Obama has offered them a pretty good deal. You know, Obama has offered them a pretty moderate guy. He’s offered them an older justice, who won’t serve as long as someone younger would. And if they hold out too long, they risk having President Clinton come in next year and pick a 49-year-old. So, at the end of the day, I think that Republicans need to be smart about this and realize that Obama has put a deal on the table that’s actually a pretty good deal for them. And if they want to hold out for Donald Trump or whoever they want the next president to be, they can try to do that, but they could wind up with President Clinton in the White House picking someone that they’re going to like even less.

AMY GOODMAN: I want to thank you both for being with us, Ian Millhiser, senior fellow at the Center for American Progress Action Fund and editor of ThinkProgress Justice. And I also want to thank Terry O’Neill, president of the National Organization for Women.

This is Democracy Now!,, The War and Peace Report. When we come back, one of the worst Supreme Court decisions ever. We’ll speak with Adam Cohen, author of a new book called Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. Stay with us.

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