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Deciphering Supreme Court Nominee Merrick Garland

His record indicates a willingness to draw on practical experiences when deciding issues related to fair-trial rights and the balance of power between the prosecution and defense. But it leaves room for debate on how he’ll resolve those issues.

March 22, 2016

Cross-posted at Reuters

While announcing D.C. Circuit Judge Merrick Garland as his pick to replace Justice Antonin Scalia on the U.S. Supreme Court, President Barack Obama praised the judge for his “sterling record as a prosecutor.” Even in tough cases, the president said, Garland “took pains to do everything by the book.”

This introduction tells a great deal about Garland. But what does it say about him as a potential Supreme Court justice? If confirmed, can Americans expect that Garland would hold prosecutors to the same high standards? Or have his years as a prosecutor left him skeptical of, or even jaded about, the difficulties faced by those caught up in the system?

Parts of Garland’s record may give pause to reformers who want an ally to help address the problems of mass incarceration and racial disparity in the criminal justice system. But a case-by-case analysis doesn’t give a clear picture. It won’t help predict where Garland will stand on the tough issues likely to come before the court. Evaluating his entire career, however, including his time as a prosecutor, tells more about Garland’s ability to understand and repair the serious problems in the criminal justice system.

There is a tradition of Supreme Court justices relying on past experiences in government to think critically about tough cases. Justice Robert Jackson, for example, demonstrated this when he reversed his stand on executive power in an important 1952 ruling, Youngstown Sheet & Tube Co. v. Sawyer.

The case pitted President Harry S. Truman against Congress. Jackson, as President Franklin D. Roosevelt’s attorney general, had regularly defended an expansive vision of executive power. But as a Supreme Court justice, Jackson sided with Congress to limit presidential authority.

In a footnote to his opinion, Jackson even distanced himself from his “earlier partisan advocacy” undertaken as Roosevelt’s attorney general.

Justice Sonia Sotomayor offers another example of a justice relying on past experience. She began her career as an assistant district attorney in the Manhattan DA’s office. There, she managed a heavy docket of misdemeanor and felony cases, working with crime victims and New York City police officers. In at least one recent Supreme Court case, Sotomayor appeared to draw on her personal experiences to question the practical effects of the high court’s decisions in search-and-seizure cases. From her time as a prosecutor, she knew that the Fourth Amendment was more than an abstract concept for lawyers to debate: It had real effects on Americans’ lives.

These examples underscore the importance of knowing what lessons Garland would take from his own experiences as a federal prosecutor.

Garland’s time on the D.C. Circuit offers few clues; it has led some to pigeonhole him as a tough-on-crime consensus nominee rather than a bold champion of the Constitution in the mold of Justice William J. Brennan, Garland’s onetime boss.

“Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions,” wrote SCOTUSblog in 2010. In United States v. Watson, for example, he dissented from an order reversing a drug conviction based on prosecutorial misconduct.

True, Garland conceded, the prosecutor had misstated some evidence in closing arguments, but it hadn’t affected the outcome of the trial. Such “[i]nnocent mistakes of recollection are inevitable and hardly uncommon,” he wrote. Though perhaps comforting to overworked prosecutors, this opinion might strike the defense bar and reform advocates alike as tone deaf.

Elsewhere, though, Garland has shown a healthy skepticism of prosecutors and a savvy understanding of how criminal trials actually work. In his most famous case on the D.C. Circuit, Parhat v. Gates, he threw out a military tribunal’s decision to detain Huzaifa Parhat, who was being held at Guantanamo Bay, Cuba, on suspicion of terrorism. Without hard evidence, Garland wrote, which the government had not offered, continuing Parhat’s detention “would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion.”

“Lewis Carroll notwithstanding,” he wryly joked, “the fact that the government has ‘said it thrice’ does not make an allegation true.”

This decision suggests that Garland as a judge understands the care with which government attorneys must wield their considerable power. His record indicates a willingness to draw on practical experiences when deciding issues related to fair-trial rights and the balance of power between the prosecution and the defense. But it leaves room for debate about how he would resolve those issues when confronted with them.

These are important questions that deserve an answer. Garland’s nomination comes at a critical point for criminal-justice reform advocates. There is a growing concern among other circuit court judges that there are serious problems with the U.S. justice system. In some recent cases, the Supreme Court has itself expressed skepticism about prosecutorial overreach and overly punitive sentencing. Next term, the court will consider remedies available to a defendant after a wrongful arrest and prosecution.

If the Senate gives Garland a hearing, senators should ask what his professional history says about how he would view such tough cases. As a former prosecutor, Garland could be in a unique position to understand these problems — and how judges can help fix them.