Merrick Garland and Judicial Restraint: How A ‘Moderate’ Judge is A Gift to Republicans

Story Transcript

JESSICA DESVARIEUX, TRNN: President Barack Obama has named his nominee for the Supreme Court: DC Chief Judge of the U.S. Circuit Court of Appeals Merrick Garland.

MERRICK GARLAND: Fidelity to the Constitution and the law has been the cornerstone of my professional live, and 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.

DESVARIEUX: But what does Garland’s past course look like? Garland spent a few years as a partner in the multinational law firm Arnold and Porter, one of the oldest firms in the country, and notably the counsel for tobacco corporation Philip Morris in a massive lawsuit in the ’90s for harm caused by tobacco use.

TOBACCO COMMERCIAL VOICEOVER: And remember, if it’s Philip Morris, king size or regular, your throat can tell it’s America’s finest cigarette.

DESVARIEUX: Also, Garland served in the Justice Department under former president Bill Clinton, who appointed him to his current post. Now, as DC Chief Judge, how has Garland ruled on major issues? Let’s take a look at campaign finance.

In a campaign finance case, SpeechNow.org v. FEC, Garland upheld the Citizens United holding that independent expenditures do not create actual or apparent quid pro quo corruption. Garland ruled that unlimited campaign contributions around issues were protected under free speech. On labor issues, Garland has been found to rule more favorably towards unions. In an analysis revealed by OnLabor.org, it revealed that between 1997-2016, Garland wrote the majority opinion in 22 cases involving appeals of National Labor Relations Board decisions. In all but four, Garland upheld the entirety of the NLRB’s decision, finding that an employer had committed unfair labor practices.

But on criminal justice issues, Judge Garland rarely voted in favor of criminal defendants’ appeals of their convictions, according to analysis done by SCOTUSblog. This more centrist, conservative-leaning record would fall in line with the Supreme Court’s history of upholding elite interests.

ERWIN CHEMERINSKY: Throughout American history, the Supreme Court has used their power much more to favor the wealthy, corporations, the elites in society, than to favor consumers or employees, or patients in the medical system.

DESVARIEUX: Dean of Law at the University of California, Irvine, Erwin Chemerinsky, says that the current Roberts court is strongly following the tradition of upholding elite interests.

CHEMERINSKY: The Roberts court, which has been the most pro-business Supreme Court since the 1930s–. That’s not just my opinion. A couple of years ago a book came out by Richard Posner, a Federal Court of Appeals judge, William Landes, professor at the University of Chicago, and Lee Epstein, a professor at Washington St. Louis. And they concluded by a number of statistical measures that this is the most pro-business court there’s been since the 1930s.

DESVARIEUX: Despite what seems like a perfect choice to continue this course, Republicans in the Senate have vowed to block any nominee to replace Scalia, saying the next justice should be chosen by Obama’s successor. But President Obama says he will press on with the nomination.

BARACK OBAMA: I simply ask Republicans in the Senate to give him a fair hearing. And then an up or down vote. If you don’t, then it will not only be an abdication of the Senate’s Constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.

DESVARIEUX: For the Real News Network, Jessica Desvarieux, Washington.

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