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?