Merrick Garland and the Greatest Justices That Never Were

Brandon Magner, KLJ Staff Editor[1]

When President Barack Obama nominated Merrick B. Garland to fill the late Antonin Scalia’s seat on the Supreme Court, it was a unique event for a number of reasons. He was nominated in an election year, the first such nomination since World War II.[2] Furthermore, Garland has 19 years of federal judicial experience, the most of any nominee to the Court in United States history.[3] And perhaps most atypically, Garland has earned rave reviews throughout his career from both ends of the partisan spectrum—an increasingly rare phenomenon in modern politics.[4]

Indeed, Garland—the Chief Judge of the Court of Appeals for the D.C. Circuit—has garnered unusually high praise from influential Republican senators. Senator Orrin Hatch, a longtime member of the Senate Judiciary Committee, once said that Garland was “well qualified for his position, and several prominent lawyers from both parties have indicated their enthusiastic support” for his 1997 nomination to the D.C. Circuit.[5] While Senator Chuck Grassley attempted to block Garland’s confirmation for procedural reasons, the now-Chairman of the Judiciary Committee agreed that Garland was “well qualified.”[6] And in 2010, Hatch called Garland “a consensus nominee” in reference to his rumored candidacy for Justice John Paul Stevens’s vacant seat.[7] Hatch stated that he had “no doubts that Garland would get a lot of votes” and that Garland “would be very well supported by all sides.”[8]

Consequently, there is little doubt that Garland has the necessary pedigree to sit on the Supreme Court. However, it remains to be seen whether he will ever actually be confirmed. Republican senators appear to have successfully stalled a vote until after President Obama’s second term has expired,[9] thereby placing the fate of Scalia’s successor in the hands of the next President. If Donald Trump wins the general election this November, Garland’s chances would obviously vanish. But some speculate that even if Hillary Clinton were to take office, she would be tempted to withdraw Garland’s nomination in favor of a younger, more liberal candidate for the Court.[10]

As a celebrated judge still waiting for his seat on the nation’s highest court, Garland is in a precarious position. Not many achieve fame in the lower courts. For the few who earn that distinction, those who attain the ultimate honor of a Supreme Court confirmation have served as paragons of their craft. Oliver Wendell Holmes, Jr. was arguably the country’s most famous jurist even before his nomination, having penned a pair of American legal classics in the late nineteenth century.[11] Justice Holmes is often considered one of the three-greatest justices to ever sit on the Supreme Court,[12] and Benjamin Cardozo isn’t far behind.[13] As the writer of countless opinions that would eventually work their way into law school lore, like Jacob & Youngs,[14] Palsgraf,[15] and Wagner,[16] it is easy to see why the New York Times wrote of Justice Cardozo’s nomination in glowing fashion: “[S]eldom, if ever, in the history of the Court has an appointment been so universally commended.”[17]

However, Justice Cardozo’s ascension belies the amount of luck a judge needs to become one of “The Nine”. Cardozo, after all, was deprived of earlier nominations by the influence of Chief Justice William Howard Taft, who was wary of Cardozo’s progressive leanings.[18] Consider the misfortune of Cardozo’s fellow New Yorker, Judge Learned Hand. Hand was another judicial rockstar, dubbed “the Tenth Justice” by some,[19] and “the greatest judge never to be appointed to the Supreme Court” by others,[20] but he fell just short of appointments in 1930 and 1942. The first failure was due to geography, as there were already two New Yorkers on the bench; the other was because F.D.R. deemed him to be too old at 70.[21]

Poor timing can end in tragedy. Richard S. Arnold was one of his generation’s most revered federal judges,[22] and a virtual shoe-in for confirmation in a Democratic administration. It is the stuff of legends that he was valedictorian of the Class of 1960 at Harvard Law School, one spot ahead of his classmate Antonin Scalia.[23] But when it came time for Bill Clinton to nominate his fellow Arkansan to the Court in 1994, it was too late: Arnold’s long-term lymphoma had recently worsened to the point where doctors weren’t sure how long he had to live.[24] Clinton withdrew his offer and moved onto Stephen Breyer, not knowing that Arnold had another ten years of fight left in him.[25]

While nominees are sometimes denied an appointment due to uncontrollable factors such as age or shifting political winds, some failed appointments can be traced to the infamy of the nominee. Robert Bork provides the most memorable example. Few denied that Bork—a D.C. Circuit judge, Solicitor General, and originalist icon—was well-qualified to sit on the Supreme Court,[26] but opponents seized on a litany of issues to deny Bork his seat: his rejection of the substantive right to privacy, his opinion that the Civil Rights Act was unconstitutional, and his role as Richard Nixon’s so-called hatchet man in the “Saturday Night Massacre.”[27]

Bork’s rejection by the Senate set the stage for the next generation of contentious judicial nominations, but the Senate had precedent for voting down qualified nominees. John J. Parker of the Fourth Circuit was thought of so highly in legal circles that he was selected to represent the United States as a judge at the Nuremburg Trials,[28] but his appointment to the Supreme Court had failed by a single vote in 1930. Labor unions decried Parker’s perceived sympathies for big business and anti-union contracts, and the nascent N.A.A.C.P. rallied against remarks he made against black suffrage in his failed 1920 North Carolina gubernatorial campaign.[29]

A truly bizarre example of unfurled dirty laundry exists in the career of Richard Posner. Posner, another staple in law school textbooks, has spent more than three decades on the Seventh Circuit and is widely considered to be a brilliant jurist.[30] So why has he never been a serious candidate for elevation to the Court? The answer may lie in Posner’s infamous law review article about the United States adoption process.[31] In it, Posner argues that inefficiencies in government-regulated adoption procedures could be alleviated by legalizing the selling and purchasing of babies on the open market.[32] In the words of a longtime admirer: “Add his advocacy of legal marijuana and LSD [to his theories of free-market adoptions], and it is clear that Posner—despite his obvious brilliance—will never sit on the U.S. Supreme Court.”[33]

It is impossible to say what will become of Garland’s nomination. He may be confirmed, he may be voted down, or he may be withdrawn for another candidate in a new administration. But while Garland is uniquely qualified to serve on the Court, history reveals that at least some great judges will not become great Justices.

[1] J.D. expected May 2018.
[2] Justice Anthony Kennedy was confirmed by the Senate in February 1988, but Ronald Reagan had nominated Kennedy in November 1987; additionally, while Lyndon B. Johnson made two Supreme Court nominations in the summer of 1968, neither were put forth to fill current vacancies, as Chief Justice Earl Warren had merely indicated his intent to retire. See Tom Kertscher, Urging Vote on Merrick Garland, Congresswoman Says 6 Justice Have Been OK’d in Presidential Years, Politifact (Mar. 17, 2016, 10:00 AM), http://www.politifact.com/wisconsin/statements/2016/mar/17/gwen-moore/urging-vote-merrick-garland-congresswoman-says-6-j/.
[3] Paul Brennan, Verbatim Fact Check: Does Merrick Garland Have the Most Federal Judicial Experience of Any U.S. Supreme Court Nominee in History?, Ballotpedia: Verbatim (Apr. 22, 2016), https://ballotpedia.org/Verbatim_fact_check:_Does_Merrick_Garland_have_the_most_federal_judicial_experience_of_any_U.S._Supreme_Court_nominee_in_history%3F.
[4] See infra notes 5-8 and accompanying text.
[5] Josh Gerstein et al., Clinton Library Releases Merrick Garland Files, Politico (Aug. 3, 2016, 1:35 AM), http://www.politico.com/story/2016/08/merrick-garland-files-clinton-library-226614.
[6] Caitlin McNeal, WATCH: Hatch, Grassley Said Merrick Garland was Qualified in 1997, Talking Points Memo: Livewire (Mar. 16, 2016, 12:33 PM). http://talkingpointsmemo.com/livewire/hatch-grassley-merrick-garland-1997
[7] Thomas Ferrero, Republican Would Back Garland for Supreme Court, Reuters (May 6, 2010, 7:18 PM), http://www.reuters.com/article/us-usa-court-hatch-idUSTRE6456QY20100506.
[8] Id.
[9] Nina Totenberg, 170-Plus Days and Counting: GOP Unlikely to End Supreme Court Blockade Soon, NPR (Sept. 6, 2016, 4:30 PM), http://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikely-to-end-blockade-on-garland-nomination-soon.
[10] Edward-Isaac Dovere & Burgess Everett, Dem Senators to Clinton: Stick with Garland, Politico (Aug. 12, 2016, 5:33 PM), http://www.politico.com/story/2016/08/hillary-clinton-merrick-garland-nomination-226967.
[11] See Oliver Wendell Holmes The Common Law (1881); see also Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
[12] See, e.g., Richard A. Posner, The Hand Biography and the Question of Judicial Greatness, 104 Yale. L. J. 511 (1994) (“Learned Hand is considered by many the third-greatest judge in the history of the United States, after Holmes and John Marshall; some might even rank him higher.”).
[13] See, e.g., Richard A. Posner, Cardozo: A Study in Reputation 9 (1990) (“Cardozo is generally placed in the highest rank of American judges”) (citation omitted); Felix Frankfurter, When Judge Cardozo Writes, The New Republic, Apr. 8, 1931, at 211 (“[Cardozo] must be included in the first half-dozen judges of the English-speaking world.”).
[14] Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921).
[15] Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928).
[16] Wagner v. International R.R. Co., 232 N.Y. 176 (1921).
[17] Cardozo is Named to Supreme Court; Nomination Hailed, N.Y. Times, Feb. 16, 1932, at A1.
[18] See Henry Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court 24, 146 (2007) (“Another Taft victim was Benjamin N. Cardozo, who might ‘herd,’ or so Taft feared, with Justices Holmes and Brandeis.”) (“[Taft] was not notably successful in winning his first choices, but he tellingly ‘used his influence to defeat selection of an “off horse” such as . . . Cardozo of New York.”) (citations omitted). Furthermore, it is commonly promulgated that Herbert Hoover, a Republican, nominated Cardozo, a Democrat, to appear less partisan leading up to the 1932 election. See Posner, supra note 11, at 4.
[19] See, e.g., Marc M. Arkin, “The Tenth Justice”: A Review of Learned Hand by Gerald Gunther, The New Criterion, May 1994, at 75.
[20] See, e.g., Adam Liptak, Justices Turning More Frequently to Dictionary, and Not Just for Big Words, N.Y. Times (June 13, 2011), http://www.nytimes.com/2011/06/14/us/14bar.html?_r=1 (“Learned Hand, widely considered the greatest judge never to have served on the Supreme Court . . . .”).
[21] See Gerald Gunther, Learned Hand: The Man and the Judge 418-28 (1994).
[22] See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 7 (2007).
[23] Id. at 76.
[24] Id. at 78.
[25] Id. at 79.
[26] While Bork received a split vote on his “well-qualified” rating from the American Bar Association, the A.B.A. had previously deemed Bork “exceptionally well-qualified” during his confirmation to the D.C. Circuit: the highest possible rating for lower-court judges. See Bar Panel Supports Bork in Split Vote, Cincinnati Enquirer, Sept. 10, 1987, at A7.
[27] See Toobin, supra notes 22-25, at 18-19.
[28] See Rebecca West, Extraordinary Exile, The New Yorker (Sept. 7, 1946).
[29] See The N.A.A.C.P. Battle Front, The Crisis, June 1930, at 196-97.
[30] See, e.g., Dean Clancy, America’s Most-Cited Jurist Hates Words and History, The Federalist (Dec. 2, 2015), http://thefederalist.com/2015/12/02/americas-most-cited-jurist-hates-words-and-history/ (“One of the nation’s most frequently cited judges, [Posner] is also one of the most respected . . . . [N]ot since Oliver Wendell Holmes Jr. has there been an American jurist who has come so close to capturing the spirit of his age.”).
[31] See Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. Legal. Stud. 323 (1978).
[32] Id. at 339-48.
[33] Robert S. Boynton, Sounding Off, a Review of Richard Posner’s Public Intellectuals, robertboynton.com (Jan. 20, 2002), http://www.robertboynton.com/articleDisplay.php?article_id=75.

*Featured image from the United States Senate Democrats Flickr page, licensed under CC BY-SA 2.0.