A month after U.S. Supreme Court Justice Antonin Scalia’s death, President Obama has appointed Merrick B. Garland to fill the High Court vacancy.  Judge Garland currently is Chief Judge for the U.S. Court of Appeals for the D.C. Circuit.  He is viewed by many as a more centrist choice for the position. A closer look at his record, however, reveals that Judge Garland is someone whose positions on employment-related issues are not as centrist as he may be portrayed. There is some indication, however, that he may be a more palatable choice for Republicans should a Democrat be elected President in November.

Garland's Background

Judge Garland graduated summa cum laude from Harvard University in 1974 and magna cum laude from Harvard Law School in 1977.  He began his legal career as a law clerk to Judge Henry Friendly of the United States Court of Appeals for the Second Circuit; he then clerked for Justice William J. Brennan at the U.S. Supreme Court. 

Following his clerkships, Judge Garland was in private practice from 1985 to 1989 and again from 1992-1993.  From 1989 to 1997, he worked primarily in the public sector, serving as an Assistant U.S. Attorney for the District of Columbia, Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice, and Principal Associate Deputy Attorney General.  As a Principal Associate Deputy, Garland gained notoriety for supervising the Oklahoma City bombing prosecutions.

President Clinton nominated Garland to the D.C. Circuit Court in 1995. His nomination, however, stalled because Senate Republicans did not believe that the vacant seat should be filled by anyone.  In 1997, President Clinton again nominated Garland for the D.C. Circuit; this time, he was confirmed by the Senate by a vote of 76-23.  According to the New York Times, Judge Garland was also on President Obama’s short list of candidates to replace Justice Stevens in 2010.

Positions in Labor & Employment Cases

Despite his centrist reputation, Judge Garland’s views on administrative deference are likely to give many employers pause.  For example, Judge Garland has opined that the court of appeals should uphold credibility determinations by Administrative Law Judges unless they are “‘hopelessly incredible,’ ‘self-contradictory,’ or ‘patently unsupportable.’”  Shamrock Foods Co. v. NLRB, 346 F.3d 1130, 1134 (D.C. Cir. 2003), (citations omitted).  Furthermore, Judge Garland noted in a dissenting opinion that the NLRB’s “determination that an employee has engaged in protected concerted activity is entitled to considerable deference if it is reasonable.”  Northeast Bev. Corp. v. NLRB, 554 F.3d 133, 141 (D.C. Cir. 2009) (citations omitted).  Judge Garland has continued his pattern of administrative deference in his more recent opinions as well.  See Spurlino Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. 2015); see also Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. 2015).

Judge Garland also has shown a willingness to uphold administrative rules that burden employers.  For example, in Associated Builders & Contractors, Inc. v. Shiu, 773 F.3d 257 (D.C. Cir. 2014), Judge Garland voted to uphold a rule promulgated by the Department of Labor’s Office of Federal Contract Compliance Programs, under Section 503 of the Rehabilitation Act, requiring government contractors to “take affirmative action to employ and advance in employment qualified individuals with disabilities.”  Thus, given his past rulings, Judge Garland’s views, if he is confirmed by the Senate, may contribute to the trend of administrative agencies expanding their power through rulemaking. 

Unlike Judge Garland’s history with administrative agencies, his record on employment issues is not well-established. For example, in McGrath v. Clinton, 666 F.3d 1377 (D.C. Cir. 2012) and Waterhouse v. District of Columbia, 298 F.3d 989 (D.C. Cir. 2002), Judge Garland affirmed summary judgment for employers on Title VII claims.  However, in both Steele v. Schafer, 535 F.3d 689 (D.C. Cir. 2008), and Czekalski v. Peters, 475 F.3d 360 (D.C. Cir. 2007), Judge Garland reversed the lower court’s grant of summary judgment on Title VII claims for employers.  Finally, in the noteworthy case of Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), Judge Garland reversed a lower court’s dismissal of a Title VII claim, holding that “a plaintiff need not set forth the elements of a prima facie [discrimination] case at the initial pleading stage.”  Although Judge Garland’s record on individual employment matters is relatively moderate, his deference to administrative agencies and their rulemaking should raise red flags in the employer community.

What's Next?

Initial reactions to the nomination fall along partisan lines.  Several unions have strongly supported the selection.  The National Rifle Association has strongly opposed Judge Garland.  In the coming days, we anticipate similar pronouncements from trade associations and other interested parties.  

Meanwhile, Senate Majority Leader Mitch McConnell (R-KY) is holding fast to the position that the Senate will not hold hearings on Judge Garland, leaving that issue instead for the next President to decide. In addition, Senator Orrin Hatch (R-UT), who has publically praised Judge Garland, has written an article arguing that the Senate should not hold a confirmation hearing. 

A few Republican Senators, however, have indicated a willingness to meet with Judge Garland; one has said he would entertain a potential vote on the nomination during the lame duck session of Congress after the November elections.  Notably, Senator Charles Grassley (R-IA), Chairman of the Senate Judiciary Committee, will likely face his most formidable Democratic challenger later this year.  His anticipated opponent, Democrat Patty Judge, a former Lieutenant Governor and Secretary of Agriculture of Iowa, has already attacked Senator Grassley’s “obstructionism.”  Further, Minority Leader Harry Reid (D-NV) said publicly that Senator McConnell will alter his position over time, meaning the Senate will eventually vote on confirmation.  Clearly, the nomination of Judge Garland will continue to be an ongoing issue in the political process between now and November, and possibly beyond.