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Polar bears, Princess Diana, gun rights: The opinions of Obama's Supreme Court nominee, Merrick Garland

The Huffington Post The Huffington Post 18/03/2016 The Conversation US

Caren Morrison, Georgia State University

Merrick Garland, President Obama's pick for the Supreme Court, has become the subject of enormous controversy, pitting politics against history and dueling readings of the Constitution.

But if Senate Judiciary Committee did interview him, what would they ask? We examined a selection of his 334 opinions written for the Court of Appeals for the D.C. Circuit to find out.

Judicial personality

A review of his opinions reveals a moderate, thoughtful judge with an abundance of common sense and a ready sympathy for endangered species like polar bears and arroyo toads.

Judge Garland's opinions are models of painstaking legal analysis. He is courteous to dissenting judges - you won't be hearing from him that an opposing view is "pure applesauce," as Justice Scalia memorably wrote.

He has authored few dissents himself, but when he has, they have been notable. When the court barred a suit by Iraqi citizens who claimed to have been tortured by private military contractors in Abu Ghraib prison, Garland dissented. In a meticulous, 38-page opinion, he demonstrated that "no act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors." But he did not have a single harsh word for the majority. "My colleagues reach a different disposition than I do under the combatant activities exception because they employ a different test," he wrote.

Missing from the record

Judge Garland does not appear to have written court opinions about abortion, affirmative action, same sex marriage, or the death penalty. Much of this is due to the caseload in the DC Circuit, which is heavier on agency action, federal regulations, and the like.

He has not directly taken part in cases dealing with gun control, although he voted to have a 2007 decision striking down Washington DC's gun control law re-heard by the full Circuit. This doesn't tell us much, as his vote to rehear was issued without an opinion, and joined by one of his conservative colleagues as well as a liberal one. But it was duly noted by the National Review, and will most likely be taken as a sign of unfriendliness towards the gun lobby.

Most of Judge Garland's opinions don't seem terribly controversial. He usually takes a sensible approach, like ruling that the State Department can't fire someone for turning 65 just because they're working abroad, or that requiring an employee to make up time spent in aerobics class does not amount to unlawful discrimination.

Because of his background as a prosecutor - most notably on the Oklahoma City bomber case - he is seen as fair, but not overly liberal in criminal cases.

© Provided by The Huffington Post The U.S. Supreme Court REUTERS/Jim Bourg

Campaign finance and free speech

Campaign finance reform remains a hotly contested topic that is likely to result in a lot of scrutiny.

In 2010, the Supreme Court ruled in Citizens United that political spending is a form of protected speech under the First Amendment. Soon after, Judge Garland joined in a unanimous decision by the DC Circuit that allowed unlimited donations by individuals to "Super PACs," the nominally independent groups that support political candidates.

After Citizens United, the DC Circuit found the application of the law to be "straightforward."

But this past summer, a group of contractors challenged a provision of the Federal Election Campaign Act that barred individuals and firms from making federal campaign contributions while they negotiated or performed federal contracts.

Judge Garland distinguished this ban from the situation in Citizens United. The contribution ban only operated during the period of contract negotiation and performance, the very time that the risk of corruption was at its height. This risk wasn't speculative either, he wrote:

in the case of contracting, there is a very specific quo for which the contribution may serve as the quid: the grant or retention of the contract."

Garland, joined by every other judge on the Circuit, upheld the restriction.

Guantanamo detainees

Judge Garland ruled on several cases brought by Guantanamo detainees, including Shawali Khan, Mashour Alsabri, and Moath Al Alwi. In all three cases, Garland agreed with the lower court that there was reliable evidence that the detainees were associated with either al Quaeda or the Taliban. Under the Authorization for the Use of Military Force, he ruled, so long as it is more likely than not that an individual is part of the Taliban or al Quaeda, their detention is legal.

But even though the standard is low, Garland at least required that it be met. Faced with a lack of reliable evidence in Parhat v. Gates, he took a much stricter approach. Hufaiza Parhat, an Uighur, a persecuted Muslim ethnic minority in China, challenged his designation as an enemy combatant.

"It is undisputed," wrote Judge Garland, "that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies." The Combatant Status Review Tribunal had nevertheless designated Parhat an enemy combatant on extremely attenuated evidence.

Setting aside his usually measured tone, Garland noted that the government had argued that the allegations that Parhat was an enemy combatant were reliable because they were made in at least three different documents.

"We are not persuaded," retorted Garland, throwing in a reference to Lewis Carroll's 1876 poem The Hunting of the Snark for good measure: "Lewis Carroll notwithstanding, the fact that the government has 'said it thrice' does not make an allegation true."

Garland had even less patience with the government argument that the State and Defense Departments would not have put the enemy combatant allegations in intelligence documents if they weren't reliable. He wrote:

This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.

He ordered Parhat released, and in 2011, Parhat and three other Uighurs were sent to Bermuda.

FOIA requests

One issue that frequently comes up in the DC Circuit is how the government should respond to requests under the Freedom of Information Act.

Judge Garland ruled against the CIA when the American Civil Liberties Union sued to obtain records relating to the use of drones to carry out targeted killings. In classic Bourne Identity style, the CIA had refused to confirm or deny the existence of any such records. Given the fact that the President had already acknowledged the use of drone strikes in Pakistan and Afghanistan, Judge Garland was unimpressed by the CIA's arguments. "It is neither logical nor plausible to maintain that the Agency does not have any documents about drone strikes," he wrote.

He also had a case involving the death of Princess Diana and her boyfriend, Dodi Al-Fayed, in a car crash in Paris in 1997. Al-Fayed's father had made a FOIA request for documents from the CIA, claiming that the NSA had recorded the Princess' telephone conversations and that MI6, Britain's spy agency, might have been involved in the deaths. But the case was just about getting his FOIA request expedited. Judge Garland found that he had not demonstrated a "compelling need" for faster service.

Friend to polar bears and toads

Judge Garland does have a fairly strong record of support for environmental regulations.

He upheld a move by the EPA to eliminate a loophole that let some homeowners do renovations without worrying about lead paint dust.

© Provided by The Huffington Post Arroyo toad

He joined an opinion upholding the Fish and Wildlife Service's determination that "due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future."

And he upheld a ruling against a real estate development company whose proposed housing project would destroy the habitat of the arroyo toad.

When the developers tried to argue that the toads themselves did not conduct economic activity and so could not be regulated, Judge Garland set them straight:

The regulated activity is Rancho Viejo's planned commercial development, not the arroyo toad that it threatens. The Endangered Species Act does not purport to tell toads what they may or may not do.

Finally, Garland voted to uphold EPA regulations of power plant emissions to limit the dispersion of mercury and other toxins. This decision was by reversed by the Supreme Court last June, on the grounds that the EPA hadn't considered the costs to the utilities.

The opinion's author? Justice Scalia.

Caren Morrison, Associate Professor of Law, Georgia State University

This article was originally published on The Conversation. Read the original article.

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