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Attorney General – confirmation needed

Merrick Garland

by Deedra Abboud in Political
January 23, 2021 0 comments

President Joe Biden has nominated Merrick Garland for the position of United States attorney general.

The position: Top legal official in the federal government. Advises the White House on legal and judicial matters.

Garland is a resident of BethesdaMaryland.

Garland and his wife, Lynn, have been married since 1987.

Lynn Garland’s grandfather, Samuel Irving Rosenman, was a justice of the New York Supreme Court (a trial-level court) and a special counsel to presidents Franklin D. Roosevelt and Harry S. Truman.

Garland and his wife have two daughters, Rebecca and Jessica; both are graduates of Yale University.

Garland is partially colorblind so he uses a list to match his suits and ties.

Merrick Brian Garland was born in 1959 in Chicago.

He was raised in the northern suburb of Lincolnwood in the Chicago area.

His mother Shirley (née Horwitz) was a director of volunteer services at Chicago’s Council for Jewish Elderly (now called CJE SeniorLife); his father, Cyril Garland, headed Garland Advertising, a small business run out of the family’s home. 

Garland is a second cousin of six-term Iowa Governor Terry Branstad.

Garland’s grandparents left the Pale of Settlement within the Russian Empire in the early 20th century, fleeing antisemitic pogroms and seeking a better life for their children in the United States.

Garland attended Niles West High School in Skokie, Illinois, where he was president of the student council, acted in theatrical productions, and was a member of the debate team.

He graduated in 1970 as the class valedictorian.

Garland was also a Presidential Scholar and National Merit Scholar.

Garland attended Harvard College on a scholarship, graduating as valedictorian with an A.B. degree summa cum laude and Phi Beta Kappa in social studies in 1974.

He initially wanted to become a physician, but quickly decided to become a lawyer instead.

Garland allied himself with his future boss, Jamie Gorelick, when he was elected the only freshman on a campus-wide committee.

During his college summers Garland volunteered as Congressman Abner J. Mikva‘s speechwriter.

After President Jimmy Carter appointed Mikva to the D.C. Circuit, Mikva would rely on Garland when selecting clerks.

At Harvard, Garland wrote news articles and theater reviews for the Harvard Crimson and worked as a Quincy House tutor.

Garland wrote his 235-page honors thesis on industrial mergers in Britain in the 1960s.

Garland then attended Harvard Law School, graduating with a J.D. magna cum laude in 1977. 

During law school, Garland was a member of the Harvard Law Review, serving as an articles editor from 1976 to 1977.

As an articles editor, Garland assigned himself to edit a submission by Justice William Joseph Brennan Jr. on the topic of the role of state constitutions in safeguarding individual rights.

Garland’s correspondence with Brennan ultimately helped him win a clerkship with the justice.

Garland ran for president of the Review, but lost to Susan Estrich, best known today as the legal counsel to the former Fox News chairman Roger Ailes.

Following graduation, Garland served as a law clerk for Judge Henry J. Friendly of the Court of Appeals for the Second Circuit from 1977 to 1978, and then Justice Brennan of the U.S. Supreme Court from 1978 to 1979.

Garland was special assistant to Attorney General Benjamin Civiletti from 1979 to 1981.

After the Carter administration ended in 1981, Garland joined the law firm Arnold & Porter as an associate, and was a partner at the firm from 1985 to 1989. While at Arnold & Porter, Garland mostly practiced corporate litigation.

In 1985–86, while at Arnold & Porter, Garland was a lecturer in law at Harvard Law School, where he taught antitrust law.

He has also published an article in the Yale Law Journal urging a broader application of antitrust immunity to state and local governments.

In 1989, desiring to return to public service and do more trial work, Garland became an Assistant United States Attorney in the U.S. Attorney’s Office for the District of Columbia. As a line prosecutor, Garland represented the government in criminal cases ranging from drug trafficking to complex public corruption matters.

Garland was one of three principal prosecutors who handled the investigation into Washington, D.C. mayor Marion Barry‘s possession of cocaine.

Garland then briefly returned to Arnold & Porter, working there from 1992 to 1993.

In 1993, Garland joined the new Clinton administration as deputy assistant attorney general in the Criminal Division of the United States Department of Justice.

The following year, Deputy Attorney General Jamie Gorelick – a key mentor of Garland’s —asked Garland to be her principal deputy associate attorney general.

In that role, Garland’s responsibilities included the supervision of high-profile domestic-terrorism cases, including the Oklahoma City bombingTed Kaczynski (also known as the “Unabomber”), and the Atlanta Olympics bombings.

Garland insisted on being sent to Oklahoma City in the attack’s aftermath to examine the crime scene and oversee the investigation in preparation for the prosecution.

He represented the government at the preliminary hearings of the two main defendants, Timothy McVeigh and Terry Nichols.

Garland offered to lead the trial team, but could not because he was needed at the Justice Department headquarters. Instead, he helped pick the team and supervised it from Washington, where he was involved in major decisions, including the choice to seek the death penalty for McVeigh and Nichols.

Garland won praise for his work on the case from the Republican Governor of OklahomaFrank Keating.

Garland served as co-chair of the administrative law section of the District of Columbia Bar from 1991 to 1994.

On September 6, 1995, President Bill Clinton nominated Garland to the U.S. Court of Appeals for the District of Columbia seat vacated by his longtime mentor Abner J. Mikva

Justice Brennan, for whom Garland clerked, recommended Garland for the position in a letter to Clinton. The American Bar Association(ABA) Standing Committee on the Federal Judiciary unanimously gave Garland a “well-qualified” committee rating, its highest.

On December 1, 1995, Garland received a hearing before the Senate Judiciary Committee. Senate Republicans did not then schedule a vote on Garland’s confirmation, not because of concerns over Garland’s qualifications but because of a dispute over whether to fill the seat.

After winning the November 1996 presidential election, Clinton renominated Garland on January 7, 1997.

Garland’s confirmation vote came to the floor of the Republican-controlled Senate on March 19, 1997. He was confirmed in a 76–23 vote and received his judicial commission the next day. The majority of Republican senators voted to confirm Garland, including Senators John McCainOrrin HatchSusan Collins, and Jim Inhofe.

Senators Mitch McConnellChuck Grassley, and Jeff Sessions were among those who voted against Garland. All of the 23 “no” votes came from Republicans, and all were based “on whether there was even a need for an eleventh seat” on the D.C. Circuit.

In 2003, Garland was elected to the Harvard Board of Overseers, completing the unexpired term of Deval Patrick, who had stepped down from the board. Garland served as president of the overseers for 2009–10

Garland became chief judge of the D.C. Circuit on February 12, 2013.

As chief judge, Garland announced in May 2013 that the D.C. Circuit had unanimously decided to provide the public with same-day audio recordings of oral arguments in the court.

As chief judge, Garland was an active member of the Judicial Conference of the United States, and was involved in the formulation of new rules to protect federal judicial branch employee from workplace harassment, which were adopted in the wake of multiple sexual misconduct allegations against Judge Alex Kozinski.

Garland’s seven-year term as chief judge ended on February 11, 2020, with Judge Sri Srinivasan succeeding him. Garland continues to serve as an active member of the court.

Garland is considered a judicial moderate and a centrist.

Garland has a reputation for collegiality, and his opinions rarely draw a dissent.

As of 2016, Garland had written just fifteen dissents in his two decades on the court, fewer than his colleague Judge Brett Kavanaugh, who wrote some 17 dissents over the previous decade.

Garland has tended to favor deference to regulatory agencies.

While on the bench, Garland has shown a tendency to be deferential to the government in criminal cases, siding with prosecutors in ten of the fourteen criminal cases in which he disagreed with a colleague; however, Garland has taken a broad view of whistleblower protection laws, such as the False Claims Act (FCA), which creates a private cause of action against those defrauding the federal government.

During Garland’s tenure, the D.C. Circuit reviewed cases arising from the Guantanamo Bay detention camp; however, Garland dissented from the court’s holding that former Iraqi detainees at Abu Ghraib prison could not sue private military contractors who participated in torture and prisoner abuse. Garland wrote that the suit should be allowed to proceed because “no act of Congress and no judicial precedent” immunized the contractors from tort liability, the Federal Tort Claims Act specifically excludes contractors, and tort liability would not interfere with government operations.

According to Goldstein, Garland has “tended to take a broader view” of First Amendment rights. In cases involving the Freedom of Information Act and similar provisions related to government transparency, “Judge Garland’s rulings reflect a preference for open government.”

In cases involving campaign finance reform laws, Garland has applied Citizens United v. Federal Election Commission when he believed that he was compelled to do so, but he has not sought to extend its holding.

He is also a member of the American Law Institute.

Garland was considered twice to fill vacated seats on the United States Supreme Court in 2009 and 2010 before finally being nominated in 2016 by President Barack Obama for the seat left vacant by the death of conservative Associate Justice Antonin Scalia.

Garland had more federal judicial experience than any other Supreme Court nominee in history, and was the oldest Supreme Court nominee since Lewis F. Powell, Jr. in 1971.

The American Bar Association (ABA) Standing Committee on the Federal Judiciary unanimously rated Garland “well-qualified” (the committee’s highest rating) to sit on the Supreme Court.

The Senate’s Republican majority (under Senate Majority Leader Mitch McConnell) refused to consider Garland’s nomination, holding “no hearings, no votes, no action whatsoever” on the nomination.

McConnell’s refusal to hold hearings on Garland’s nomination was described by political scientists and legal scholars as “unprecedented”, a “culmination of [his] confrontational style,” a “blatant abuse of constitutional norms,” and a “classic example of constitutional hardball.”

After a period of 293 days, Garland’s nomination expired on January 3, 2017, at the end of the 114th Congress.

It was the longest confirmation delay of a Supreme Court nominee in history, far exceeding the 125-day delay faced by the ultimately confirmed Justice Louis Brandeis in 1916.

On January 31, 2017, President Donald Trump nominated Neil Gorsuch to fill the Court vacancy. On April 7, 2017, the Senate confirmed Gorsuch’s nomination to the Supreme Court.

McConnell went on to boast about stopping Garland’s nomination, saying in August 2016, “one of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.'”

In April 2018, McConnell said the decision not to act upon the Garland nomination was “the most consequential decision I’ve made in my entire public career”.

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