Where Would Obama’s Supreme Court Nominee Merrick Garland Stand on Labor Issues?

David MobergMarch 17, 2016

(White House)

Despite hard­line Sen­ate Repub­li­can oppo­si­tion to meet­ing with, let alone vot­ing on, any poten­tial replace­ment for recent­ly deceased Supreme Court Jus­tice Antonin Scalia, on Tues­day, Pres­i­dent Oba­ma nom­i­nat­ed Chief Judge Mer­rick Gar­land of the U.S. Court of Appeals in Wash­ing­ton, D.C., to fill the vacan­cy left by Jus­tice Antonin Scalia after his recent, unex­pect­ed death.

Gar­land is a high­ly qual­i­fied, well-respect­ed judge, first appoint­ed in 1997 by Pres­i­dent Bill Clin­ton to the D.C. Cir­cuit Court and con­firmed by a vote of 76 to 23 in the Sen­ate. Gar­land has been under con­sid­er­a­tion for a seat on the Supreme Court pre­vi­ous­ly; he has a rep­u­ta­tion for judi­cial restraint (quite unlike Scalia’s high­ly ide­o­log­i­cal attempt to use the Supreme Court to re-write the nation’s law).

It’s hard to give him a clear polit­i­cal label, but Gar­land does not seem to be as pro­gres­sive on work­ers’ rights issues as Scalia was reac­tionary. In 2010 Tom Gold­stein, pub­lish­er of SCO­TUS­blog, wrote that Gar­land was essen­tial­ly the mod­el, neu­tral judge. He is acknowl­edged by all to be bril­liant. His opin­ions avoid unnec­es­sary, sweep­ing pro­nounce­ments.” On crim­i­nal law (and cas­es involv­ing Guan­tanamo detainees), Gold­stein wrote, Gar­land leaned a bit con­ser­v­a­tive, on first amend­ment, envi­ron­men­tal and open gov­ern­ment” issues, a bit lib­er­al. One con­sis­tent thread seems to be def­er­ence towards reg­u­la­to­ry agen­cies, let­ting them make deci­sions with­out the Supreme Court always sec­ond-guess­ing or rewrit­ing the law.

That sen­ti­ment may be impor­tant for labor issues before the Supreme Court, which has fre­quent­ly act­ed to restrain the Nation­al Labor Rela­tions Board and crimp work­er rights in decades past. Scalia’s vote was cru­cial in the many 5 – 4 deci­sions by the Supreme Court that weak­ened rights and pro­tec­tions for Amer­i­can work­ers. His death, for exam­ple, seemed to have elim­i­nat­ed (for the moment) a like­ly 5 – 4 court deci­sion in the Friedrichs case, which would have pre­vent­ed pub­lic employ­ee unions from charg­ing non-mem­bers of the union a fee that paid for the ben­e­fits of union bar­gain­ing and griev­ance rep­re­sen­ta­tion that union by law must provide.

But as Cather­ine Fisk notes in On Labor, the large num­ber of 5 – 4 cas­es on labor issues sug­gests that the impor­tance of con­firm­ing a pro­gres­sive is enor­mous,” both for future cas­es and poten­tial review and over­turn of ear­li­er decisions.

Even if Gar­land is not a full-fledged pro­gres­sive,” his votes on NLRB cas­es involve more than def­er­ence to reg­u­la­to­ry agen­cies, accord­ing to Han­nah Belitz. In the four cas­es in which Gar­land did not agree to defer entire­ly to the NLRB, she wrote, Gar­land upheld pro-labor and vot­ed to over­turn pro-employ­er posi­tions, lead­ing her to describe him as hav­ing an out­look that is gen­er­al­ly favor­able to union activ­i­ty.” But def­er­ence to the NLRB does not always imply sup­port for workers.

AFL-CIO pres­i­dent Richard Trum­ka, Ser­vice Employ­ees Inter­na­tion­al Union (SEIU) pres­i­dent Mary Kay Hen­ry and UAW pres­i­dent Den­nis Williams were labor lead­ers who quick­ly wel­comed the nom­i­na­tion and urged speedy con­sid­er­a­tion of Garland’s nom­i­na­tion. Trum­ka, a coal min­er and lawyer before his labor career, praised his impec­ca­ble cre­den­tials and deep expe­ri­ence.” Hen­ry, whose union is not part of the AFL-CIO, said he would be

a good choice for work­ing fam­i­lies. His record shows that he believes in the duty of gov­ern­ment to pro­tect reg­u­lar Amer­i­cans, and our democ­ra­cy, from being cor­rupt­ed by the excess­es of the super wealthy and their cor­po­rate agen­da. He has shown that he respects the opin­ion of the Nation­al Labor Rela­tions Board…, and he has upheld dis­clo­sure require­ments to keep a check on the out­sized influ­ence dark mon­ey’ has on our government.

Gar­land appears to be a judge who is pret­ty non­par­ti­san in his rul­ings, caught in a moment of extreme polit­i­cal com­bat that threat­ens the pub­lic good and could rein­force many politi­cians’ lack of cred­i­bil­i­ty. Sen. Orrin Hatch (R‑UT), the senior Repub­li­can on the Sen­ate Judi­cia­ry com­mit­tee last week argued that Pres­i­dent Oba­ma should nom­i­nate Mer­rick Gar­land, a fine man,” but the pres­i­dent won’t because he would have to sat­is­fy his base with a lib­er­al appointee. Will Hatch now vote down a fine man” to stymie a pres­i­dent he does not like?

David Moberg, a senior edi­tor of In These Times, has been on the staff of the mag­a­zine since it began pub­lish­ing in 1976. Before join­ing In These Times, he com­plet­ed his work for a Ph.D. in anthro­pol­o­gy at the Uni­ver­si­ty of Chica­go and worked for Newsweek. He has received fel­low­ships from the John D. and Cather­ine T. MacArthur Foun­da­tion and the Nation Insti­tute for research on the new glob­al economy.

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