Yesterday, President Barack Obama nominated Chief Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court of the United States created by the death of Associate Justice Antonin Scalia.
Judge Garland, age 63, has served on the D.C. Circuit since 1997, when he was nominated by then-president Clinton and confirmed on a bipartisan vote of 76–23 by the U.S. Senate.
Judge Garland has an extensive record on labor and employment issues, deferring to decisions of the National Labor Relations Board (NLRB) in all but 4 of the 22 related opinions he authored. His strong preference of judicial deference to federal agencies, such as the NLRB, is reflected in his decision in Ceredian Corporation v. National Labor Relations Board, 435 F.3d 352, 355 (D.C. Cir. 2006), in which he made clear that “an agency’s interpretation of its own precedent is entitled to deference.”
According to On Labor’s blog, all but one of his 22 published decisions regarding the NLRB were unfavorable to employers and supportive of unions. In the one decision that was not, Pioneer Hotel, Inc. v. National Labor Relations Board, 182 F.3d 939 (1999), Judge Garland overturned two NLRB findings of an employer’s unfair labor practice, but upheld a third.
Judge Garland also has a consistent record of supporting civil rights plaintiffs in employment discrimination matters. In Kolstad v. American Dental Association, Judge Garland was one of four judges who dissented in an en banc panel decision by the D.C. Circuit that limited the availability of punitive damages under the Americans with Disabilities Act. The Supreme Court subsequently sided with Judge Garland and the dissenters and reversed the panel decision.
Whether Judge Garland’s nomination will receive a Senate hearing and floor vote, or whether any Supreme Court nomination made during the last year of the president’s expiring term should await the election of the next president, will be the subject of intense political wrangling.