Bench Memos

Law & the Courts

On Merrick Garland

Back in 2010, I favorably compared Merrick Garland to other leading candidates for a Supreme Court vacancy, and I have very high regard for his intellect and his decency. That said, I’ll repeat here what I said back then, in a post titled “Garland Just Not as Bad as Others”:

I’m surprised to see that some folks are misconstruing my favorable comparisons of D.C. Circuit judge Merrick Garland to fellow candidates Elena Kagan and Diane Wood as some sort of endorsement of Garland. I think that I have always been careful to couch my assessment of Garland in the context of severely limiting phrases like (in the links above) “Of the candidates being mentioned to fill the Stevens vacancy” and “[what] conservatives could reasonably hope for from a Democratic president.”

In case it’s somehow not clear enough, I’ll emphasize that I have zero illusions that a Justice Garland would help move the Court in the right direction in undoing the damage of decades of liberal judicial activism. I merely have reasonable hopes that he’d move more slowly than the other leading candidates in compounding the damage.

For what it’s worth, I’d bet my bottom dollar that Garland would vote to uphold the constitutionality of Obamacare, including the individual mandate.

In sum, if it were up to me, Garland wouldn’t remotely be a candidate for the Supreme Court. But, alas, it’s not. Of the candidates that President Obama might plausibly nominate to the Court, all the others strike me as markedly worse than Garland.

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