Potential court pick could face foes on the left

Some believe Garland isn’t liberal enough

By Carol D. Leonnig
Washington Post / April 25, 2010

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WASHINGTON — Unlike several other possible candidates to succeed retiring Supreme Court Justice John Paul Stevens, US Court of Appeals Judge Merrick B. Garland probably will not face conservative opposition. Instead, it could be liberals lining up against him.

A small but vocal group of activists is privately saying that Garland is not liberal enough to replace the legendary Stevens, whose opinions defended gay rights and abortion rights and opposed the death penalty.

They say Garland is a centrist who will not champion liberal concerns, too often finds middle ground with his conservative colleagues on the Court of Appeals for the District of Columbia Circuit, and showed great deference to President George W. Bush’s indefinite detentions at Guantanamo Bay, Cuba.

Herman Schwartz, an American University law professor and the author of several books on the Supreme Court and conservative judicial activism, said he found Garland’s early acceptance of Bush’s Guantanamo Bay policy “very troubling.’’

“It meant that nothing that happened to those prisoners — whether it was abusing them or holding them indefinitely — would ever be subject to the rule of law,’’ Schwartz said. “For the executive branch to have that kind of power over a person is unconscionable. And for a judge to accept the total irrelevance of the rule of law is a betrayal of that judge’s obligation to uphold the Constitution and this nation’s ideals.’’

Garland declined a request for comment.

Even his naysayers acknowledge that he is well liked by progressives and conservatives as a consensus-building judge and for his work as a top prosecutor on the Oklahoma City bombing. Many agree that he might provide the White House with the smoothest political sailing in confirmation hearings.

Among his friends are some of the capital’s most powerful Democratic operatives, as well as conservatives such as Chief Justice John G. Roberts Jr. and D.C. Circuit colleagues Laurence H. Silberman and David Sentelle. Some of the conservative judges, Republican sources say, have quietly sent their GOP friends a message: Don’t attack Garland.

If conservatives were choosing a nominee, Garland “would be nowhere on the list,’’ said Ed Whelan, president of the conservative Ethics and Public Policy Center, but Garland compares favorably with other candidates President Obama might consider.

“He’s earned the respect of a range of folks, including conservatives, and I think he is the most likely to exercise judicial restraint,’’ Whelan said.

Doug Kendall, president of the progressive Constitutional Accountability Center, said his group has not endorsed a candidate, but he called Garland a brilliant judge and said progressives could heartily support him for the high court. He said Garland has impressed fellow judges with clear writing and a focus on facts, and hence persuaded many conservatives to join him in sensitive decisions — a valuable skill for a justice.

“He’s won the admiration of everyone around him by taking the job of a judge seriously and engaging in conversation with his colleagues, rather than confrontation,’’ Kendall said.

In criticizing Garland, some liberals point to his decisions in Guantanamo cases. In 2003, Garland sided with two conservatives in a three-judge opinion that dismissed some Kuwaiti detainees’ claims that they should be able to cite lack of evidence and challenge their imprisonment at the US military base.

In 2008, he agreed to deny a rehearing to a claim from detainees that they should be able to see the US evidence against them, saying he did not want to delay a Supreme Court ruling that ultimately resolved the case.

His fans say Garland’s skill as a consensus-builder could be a major selling point for the Supreme Court, pointing to an opinion he wrote in 2008 criticizing the government’s evidence against a detainee.

The opinion concluded that President George W. Bush did not have sufficient cause to continue holding 37-year-old Huzaifa Parhat, a member of the Uighur group that opposed the Chinese government. Garland mocked the government’s evidence that Parhat was fighting US forces: three pieces of paper that cited identical information.

“The fact that the government has ‘said it thrice’ does not make an allegation true,’’ Garland wrote.

Sentelle, the conservative Reagan appointee, along with a new Bush appointee on the court, joined Garland in the opinion. The Bush Justice Department did not appeal the decision.

As a young assistant US attorney, Garland handled the drug investigation of then-D.C. Mayor Marion Barry, and later, as a top criminal division official in the Clinton Justice Department, he oversaw the convictions of Oklahoma City bombers Timothy McVeigh and Terry Nichols and Unabomber Ted Kaczynski.

That experience is a potential negative among a handful of liberals, who assert that Garland does not often overturn convictions when police and prosecutors’ propriety is questioned.