The Potential Nomination of Merrick Garland: Analysis of his record

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By Tom Goldstein - SCOTUS Blog.


After graduating with honors from Harvard University and Harvard Law School, D.C. Circuit Judge Merrick Garland clerked for Judge Henry Friendly on the Second Circuit and then for Justice William Brennan...

Judge Garland was one of four judges who dissented from the denial of rehearing en banc in a case in which the panel had limited the availability of punitive damages under the Americans With Disabilities Act. The Supreme Court subsequently reversed. Kolstad v. Am. Dental Ass’n, 139 F.3d 598 (1998) (en banc) (Tatel, J., dissenting) (along with Edwards, C.J., and Wald and Rogers, JJ., joining opinion arguing that intentional sex discrimination is sufficient to justify punitive damage award), rev’d, 527 U.S. 526 (1999).

Finally, Judge Garland joined a dissent from the denial of rehearing en banc of a significant panel opinion invalidating EPA regulations under the non-delegation doctrine. Once again, the Supreme Court reversed. American Trucking Ass’n v. U.S. E.P.A., 195 F.3d 4 (1999) (Tatel, J., dissenting from the denial of rehearing en banc), rev’d sub nom. Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001)...

The point is not that Judge Garland is conservative. None of the candidates under serious consideration is. Rather, there are gradations between the views of the three, and there are questions on which they would disagree. On a number of issues, particularly those related to criminal law, Judge Garland is the least likely to adopt a liberal position. There are, however, some potential counter-examples involving the First Amendment and environmental law.

http://www.scotusblog.com/2010/04/the-potential-nomination-of-merrick-garland/


Well researched piece and a good read.