Who Is Merrick Garland And What Does His Nomination Mean For Labor And Employment Law?

A month after U.S. Supreme Court Justice Antonin Scalia's death, President Obama has appointed Merrick B. Garland to fill the High Court vacancy. Judge Garland currently is Chief Judge for the U.S. Court of Appeals for the D.C. Circuit. He is viewed by many as a more centrist choice for the position. A closer look at his record, however, reveals that Judge Garland is someone whose positions on employment-related issues are not as centrist as he may be portrayed. There is some indication, however, that he may be a more palatable choice for Republicans should a Democrat be elected President in November.

Garland's Background

Judge Garland graduated summa cum laude from Harvard University in 1974 and magna cum laude from Harvard Law School in 1977. He began his legal career as a law clerk to Judge Henry Friendly of the United States Court of Appeals for the Second Circuit; he then clerked for Justice William J. Brennan at the U.S. Supreme Court.

Following his clerkships, Judge Garland was in private practice from 1985 to 1989 and again from 1992-1993. From 1989 to 1997, he worked primarily in the public sector, serving as an Assistant U.S. Attorney for the District of Columbia, Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice, and Principal Associate Deputy Attorney General. As a Principal Associate Deputy, Garland gained notoriety for supervising the Oklahoma City bombing prosecutions.

President Clinton nominated Garland to the D.C. Circuit Court in 1995. His nomination, however, stalled because Senate Republicans did not believe that the vacant seat should be filled by anyone. In 1997, President Clinton again nominated Garland for the D.C. Circuit; this time, he was confirmed by the Senate by a vote of 76-23. According to the New York Times, Judge Garland was also on President Obama's short list of candidates to replace Justice Stevens in 2010.

Positions in Labor & Employment Cases

Despite his centrist reputation, Judge Garland's views on administrative deference are likely to give many employers pause. For example, Judge Garland has opined that the court of appeals should uphold credibility determinations by Administrative Law Judges unless they are "'hopelessly incredible,' 'self-contradictory,' or 'patently unsupportable.'" Shamrock Foods Co. v. NLRB, 346 F.3d 1130, 1134 (D.C. Cir. 2003), (citations omitted). Furthermore, Judge Garland noted in a dissenting opinion that the NLRB's "determination...