Supreme Court Nominee Merrick Garland’s Pattern of Civility

The Institute does not endorse candidates or policies, and it certainly doesn’t endorse nominees for judicial appointments. But from time to time, as we read the news, we’ll see something from a public figure – or about a public figure – that’s profoundly heartening. It has happened over the past several months with both Bernie Sanders and Chris Christie, who have each had exemplary moments of civility. And it’s happening again right now, as we learn more about D.C. Circuit Court judge and newly-minted Supreme Court nominee Merrick Garland.

Supreme Court of the United States

In an interview after the nomination, NPR legal correspondent Nina Totenberg pointed out to President Obama that he could have chosen a candidate for the highest court who would be much more satisfying to his liberal base, and who might more effectively inflame Democrats’ passions in an election year. Asked about the logic of choosing the seemingly moderate Garland instead, the President said this:

This moment in our history – a time when judicial nominations have become so contentious, a time when our politics is so full of vitriol – I think particularly benefits from a man who by all accounts is decent, full of integrity, is someone who tries to hear the other side’s point of view, and can build bridges.

The President told Totenberg that Garland has shown himself to be a consensus builder, and that he believes, rightly, that we’re at a time where the more consensus we can forge, the better off we’re going to be.

Now, Garland is the President’s nominee. And the President has every reason to inflate his bona fides, including – or perhaps especially – his prowess as a civil guy. But we don’t need to take President Obama’s word on Merrick Garland’s civility. In the wake of his nomination, civility – born of integrity and diligence – has quickly become one of his most talked-about characteristics.

There is Republican Senator Orrin Hatch’s praise for Garland, whom he called a moderate and a fine man. And there is Chief Justice John Roberts’s assessment, at his own confirmation hearing, that anytime Judge Garland disagrees, you know you’re in a difficult area.

But more to the point, there are Merrick Garland’s former clerks and colleagues.

On CNN, Jeffrey Bellin, William & Mary Law School professor and former clerk to Garland said this of his process as an appellate court judge:

He works behind the scenes to find common ground. When called upon to do so, he will explain to other judges why the record, the facts and the law support his view. If they don’t agree, he will listen. The resulting opinions are carefully crafted to find consensus, reflecting the reality, not the rhetoric, of “rule of law.”

The most telltale sign of Garland’s influence is not blazing rhetoric; it is that a diverse group of judges will agree on the resolution of an otherwise polarizing case.

Former clerk Jay Michaelson, in The Daily Beast, wrote about his commitment to conscience over ideology:

There was not a single case I worked on with him, from the most mundane Federal Energy Regulation Commission matter to a 20-plus-year-old civil rights case, in which politics played into his considerations. Conscience, sure — Judge Garland often reminded me that there were human beings on both sides of these contentious cases—but never ideology.

In The Recorder, UC Davis law professor Albert Lin said that Garland’s goal has often been to resolve cases in a way where he could get consensus from the entire panel. And John Trasvina, dean of the University of San Francisco School of Law, said: I couldn’t imagine him ending a discussion based on whose voice was loudest or who had the most authority. More than to win, Garland’s goal has been to move some minds.

That’s a pattern of high praise. Individuals on all sides of the political spectrum, and more importantly people who have worked with him, have called Merrick Garland’s process deliberate and inclusive. They have indicated that he listens when others disagree with his assessments, and that he is more interested in decisions that are satisfactory to as many parties as possible than decisions that simply forward his beliefs.

The politics of Merrick Garland’s Supreme Court nomination are complicated, both in terms of his own beliefs which are generally regarded to be somewhere on the progressive side of moderate, and in terms of the process of his confirmation, which is held up in no small part by the pending presidential election.

But for our purposes, all of that is besides the point. What’s important here is that in his professional life, Judge Garland seems committed to a brand of civility that prefers deliberation on the facts – and that prefers consensus and good communication over polarizing pronouncements. And regardless of where his nomination ends up, that’s a thing from which we all can learn.

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