WASHINGTON — Merrick Garland almost made it to the Supreme Court six years ago, but he was saved for a time when President Obama might need someone palatable to Republicans to replace a conservative justice.
A time like now.
Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit — the most common stepping-stone to the Supreme Court — comes straight out of central casting.
Like five current justices as well as the late Antonin Scalia, who he would replace, Garland attended Harvard Law School. Like Samuel Alito and Sonia Sotomayor, he's a former prosecutor. Like Scalia, Chief Justice John Roberts, Clarence Thomas and Ruth Bader Ginsburg, he comes from the powerful D.C. Circuit court.
Garland isn't even the first Supreme Court nominee to earn undergraduate and law degrees from Harvard, clerk for Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit, work at the Justice Department, become a partner at a major Washington, D.C., law firm, and serve on the D.C. Circuit . Roberts did all that.
Faced with the opportunity to nominate the court's first Asian American, third African American or fifth woman in history, Obama opted for a mild-mannered Jew from Chicago who may be the most difficult of all the potential nominees for Republicans to rebuff.
In his brief Rose Garden remarks Wednesday, a choked-up Garland described his early years as a prosecutor seeking to convince scared mothers and grandmothers to testify against violent gang members.
"Trust that justice will be done in our courts without prejudice or partisanship is what in large part distinguishes this country from others," he said. His job then as now, he added, was to make sure that "the rule of law would prevail."
At 63, Garland is older than most high court nominees. As the top choice of a president who prides himself on the unprecedented diversity of his federal judges, Garland can only be described as a nondescript white male.
His nearly two decades on the powerful appeals court should give opponents more to parse than many recent nominees with brief tenures on the bench — or in the case of Justice Elena Kagan, who nosed out Garland in 2010, none at all. Yet a search of his record reveals few opinions or dissents on hot-button issues.
The last time Garland went before the Senate, it also was controlled by Republicans, and for a while he endured the same fate he faces now. President Bill Clinton named him to the appeals court in 1995, but his nomination languished through the 1996 election year. Once Clinton won a second term, Garland won confirmation by a 76-23 vote in 1997, with 32 Republicans supporting him.
"He earned overwhelming, bipartisan praise from senators and legal experts alike," Obama said. During each of his previous Supreme Court searches, the president said, "the one name that has come up repeatedly from Republicans and Democrats alike is Merrick Garland."
If confirmed — a long shot at the moment, but not unfathomable after Election Day — Garland would be the oldest justice to join the court since Lewis Powell, then 64, in 1972. Powell went on to serve more than 15 years, retiring in 1987.
During 19 years at the D.C. Circuit, Garland has managed to keep a low profile. The court's largely administrative docket has left him without known positions on issues such as abortion or the death penalty.
He is billed as a moderate — a label that may worry liberal advocacy groups concerned about issues such as abortion rights and gun control. At the same time, conservatives insist he's a liberal in centrist clothing.
"He's not someone who likes to issue sweeping rulings," says David Pozen, a Columbia Law School associate professor who clerked for Garland in 2008-09. "He doesn't favor grand pronouncements that go beyond the case at hand."
Garland is clearly left of center by one measure. A check of his former law clerks finds 33 who went on to clerk for liberal Supreme Court justices and only 11 for conservatives. Justices who took the most ex-Garland clerks were Breyer, Ginsburg, Kagan and retired justice John Paul Stevens.
In 2013, he wrote the appeals court's decision ordering the CIA to release information about drone strikes to a federal judge, in a challenge brought by theAmerican Civil Liberties Union. Five years earlier, he ruled that suspects could not be held as enemy combatants without verifiable evidence.
But on criminal law, he has more frequently backed law enforcement over the rights of defendants — an area of law in which Scalia, ironically, sometimes sided with the high court's liberal wing.
One issue he dealt with, at least tangentially, has been guns. In 2007, after a D.C. Circuit panel invalidated the District of Columbia's handgun ban, Garland unsuccessfully favored a rehearing by the full court. The Supreme Court ultimately struck down the ban in a landmark 2008 opinion written by Scalia.
During his 1995 confirmation hearings, Garland named former Chief Justice John Marshall, who served from 1801 to 1835, as his favorite, echoing a sentiment expressed by Scalia and many others. He also cited Justice Oliver Wendell Holmesfor his writing — a skill Scalia particularly relished.
At that time and again in 2010, Republican Sen. Orrin Hatch praised Garland and predicted he would enjoy broad support among Republicans. But Hatch and nearly all Senate Republicans now insist they will leave Scalia's seat open until a new president is in office.
Before becoming a judge, Garland was a top Justice Department official who directed the government's prosecution of Timothy McVeigh and Terry Nichols for the 1994 bombing that killed 168 people at the Alfred P. Murrah Federal Building in Oklahoma City. He also supervised the investigation of "Unabomber" Theodore Kaczynski and the bombing at the 1996 Summer Olympics in Atlanta.
Garland clerked for Supreme Court Justice William Brennan, who was nominated by President Dwight Eisenhower but, like several GOP nominees, went on to become a liberal stalwart. Between stops at the Justice Department, he rose to become a partner in the law firm Arnold & Porter.
His wife, the former Lynn Rosenman, is the granddaughter of a former New York Supreme Court justice who served as special counsel to Presidents Franklin Roosevelt and Harry Truman. The couple has two daughters.
