Federal Courts and Nominations

Merrick Garland: What happens now?

By Ariane de Vogue

Sometime in January, Merrick Garland is likely to return full-time to a top job in the judiciary. But it will be on the second highest court in the land.

Senate Republicans torpedoed Garland’s nomination to the Supreme Court by refusing to hold a hearing on him for months, and Donald Trump’s victory killed it outright. That likely means the Supreme Court will continue with a conservative majority for years to come.

But as Garland takes his seat again as the chief judge of the US Court of Appeals for the District of Columbia, he will be remembered by liberals as the nominee whose seat on the Supreme Court was stolen by Republican senators. Those senators changed forever the Supreme Court nomination process.

“I think the right way to think about this is that he is returning to the DC circuit with his stature enhanced,” said Donald B. Verrilli Jr., who served as Obama’s Solicitor General until last spring and successfully argued blockbuster cases such as same-sex marriage and Obamacare before the high court.

Verrilli said that Garland has been an “example of how to act with dignity and class and character” during the contentious process and added that Garland should serve as an example of “what it means to act in the public interest.”

Verrilli believes the fact that the Republicans refused to hold hearings for Garland has forever and perhaps irreparably changed the Supreme Court nomination process.

“I’m sure that President (Donald) Trump will nominate a person of integrity, character and qualification,” Verrilli said. “But I just think it’s going to be impossible for Democrats in the Senate to think anything other than this was a seat that was stolen from them for partisan reasons by the shredding of the norms that ought to govern the Supreme Court confirmation process.”

To be sure, Garland’s court, the DC Circuit , is incredibly important because it is charged with reviewing challenges to administrative agencies. The court, for example, is currently mulling a challenge to the Obama administration’s Clean Power Plan, as well as an important Second Amendment case concerning a DC gun law.

Supporters of Garland hope and believe his presence on the appeals court will serve as a check on the Trump administration.

“The job of a DC Circuit judge is particularly important because that court hears key cases against the federal government, and thus could serve as a crucial check against any Trump administration abuses of power,” said Elizabeth Wydra of the progressive Constitutional Accountability Center, one of the groups that led the charge to get Garland confirmed.

Garland has been absent from his day job for the most part this year because he recused himself after his nomination. The recusal freed him up to concentrate on the confirmation process and also insulated him from cases he might have heard had he ever reached the Supreme Court.

For awhile his nomination kept him busy as he traveled to the Hill and met with senators — even those who vowed to block his confirmation hearing.

He filled out a Senate questionnaire and gave only a few public interviews and talks.

As the election settles in there are some who are looking for long shot bids to get Garland on the court — prospects that have little to no chance.

But the precedent set by Senate Republicans who refused to hold hearings will likely continue to engage and outrage some constitutional scholars for decades to come.

“My concern was this was a major step in the wrong direction, what happened with Merrick Garland, and it makes it harder, I think, when the tables are turned for the other party to get this process back to where it needs to be,” Verrilli said.

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