If President Barack Obama is able to do again what few other presidents have – appoint a justice to the U.S. Supreme Court – chances are he will turn to a candidate who will have an even easier time winning confirmation than the president’s first two picks: D.C. Circuit Judge Merrick Garland.
Garland’s reputation as a smart jurist whose judicial philosophy is neither particularly controversial nor too liberal for Senate lawmakers makes him an easy pick at a time when partisan divisiveness remains high.
“Garland has earned the respect of folks across the political spectrum for his judicial craftsmanship in his 13 years on the D.C. Circuit,” said Ed Whelan, a former Justice Department official during the Bush Administration who is now President of the Ethics and Public Policy Center in Washington.
“[H]e may well be the best that conservatives could reasonably hope for from a Democratic president.”
Garland also has a lot of experience being on Obama’s Supreme Court short list. White House officials confirmed that Garland was considered for the job after Justice David Souter announced his retirement in May 2009, along with then 2nd Circuit Judge Sonia Sotomayor, who would ultimately replace Souter, and then Solicitor General Elena Kagan, who would later replace Justice John Paul Stevens when he retired in 2010.
Like Sotomayor, Garland has prosecutorial experience, having served as an assistant U.S. attorney for the District of Columbia before joining Arnold & Porter as a partner. Like Kagan, he also has administration experience, having worked in the Criminal Division of the Justice Department during the Clinton administration. Among his duties was overseeing the prosecution of the Oklahoma City bombing case.
But in picking another Supreme Court justice nominee, the top quality Obama will likely focus on is confirmability. The fact that Garland has already earned the vocal support and respect of Republicans as well as Democrats weighs heavily in his favor.
In May of 2010, Sen. Orrin Hatch, R-Utah, a member of the Senate Judiciary Committee, which vets judicial nominees, said he would have supported Garland had he been nominated for the seat vacated by Stevens.
“I have no doubts that Garland would get a lot of votes,” Hatch said at the time, after Stevens’ retirement announcement. “And I will do my best to help him get them.”