Merrick Garland Trudges On, Awaiting Supreme Court Action

Judge tends to his day job while quietly preparing for a hearing

Judge Merrick Garland was nominated to the Supreme Court by President Barack Obama in March, but has not received a Senate hearing or confirmation vote since. (Al Drago/CQ Roll Call File Photo)
Judge Merrick Garland was nominated to the Supreme Court by President Barack Obama in March, but has not received a Senate hearing or confirmation vote since. (Al Drago/CQ Roll Call File Photo)
Posted October 20, 2016 at 5:00am

For now, Judge Merrick Garland is in limbo. That is, if heaven is serving on the Supreme Court and waiting in limbo involves a bunch of paperwork.

Each morning, Garland does what he’s always done: he goes to work. That’s not so unusual. But these days, when he leaves his quiet Bethesda, Maryland, neighborhood, he’s riding in an SUV with federal agents.

He’s served as a judge in the U.S. Court of Appeals for the D.C. Circuit since 1997, and as its chief judge since 2013. Some have dubbed the court the second most important in the country, next to the Supreme Court.

But ever since President Barack Obama nominated him to replace the late Justice Antonin Scalia, Garland hasn’t been wielding a gavel in the courtroom — Supreme Court nominees often don’t hear cases while they’re awaiting confirmation. For seven months now, Garland has focused on administrative duties such as overseeing the court’s budget and preparing for a Senate hearing on his nomination that may not happen.

In the meantime, he has set a new record. Over the summer, he made history as the Supreme Court nominee with the longest wait for a confirmation hearing. And the clock is still ticking.

Senate Republicans have vowed not to take up Garland’s nomination or give any nominee a hearing until the next president takes office.

[Meet Merrick Garland: Next Justice or Historical Footnote?]

As the standoff continues on Capitol Hill, Garland is still waiting.

“He is just [putting] one foot in front of the other,” said Jamie Gorelick, Garland’s former boss at the Justice Department.

Still the same Garland 

Garland lives across the street from an elementary school in a neighborhood of nice but mostly unpretentious homes with large lawns.

Neighbors describe Garland and his family as kind and welcoming.

“It’s not as though fame has changed him in any way,” said Darrel Regier, who has lived next door to the Garland family for the past 15 years.

Regier said he can tell by the daily “pickup group” of federal agents that Garland still keeps busy, even though his nomination has not moved forward.

“That day they had the TV crews out on the sidewalk here, until now, this is an ongoing job,” Regier said. “I think the job of a candidate for the Supreme Court is a pretty intense job from what I can see.”

Gorelick said that Garland has also been spending time with his family after a difficult summer. His mother, father-in-law, and close friend and former congressman Abner Mikva (whom he succeeded on the D.C. Circuit Court) all recently passed away. Garland spoke at Mikva’s funeral service.

Still on the job

The 63-year-old Chicagoan still reports each morning to the federal courthouse in downtown Washington, according to a White House official.

His name is notably absent from a schedule of upcoming cases. The D.C. Circuit is often a launching pad for cases that reach the Supreme Court, and Garland, if confirmed, would have to recuse himself from any matter he may have presided over.

Instead, he oversees the court’s budget and expenditures, hiring, facility allocation and the recommendation of judges for the court’s committees.

Garland also continues to tutor at J.O. Wilson Elementary School roughly every other week, said D.C. Public Schools spokeswoman Michelle Lerner. He’s been volunteering at the school for nearly 20 years. This year, he has two new students whom he tutors on multiple subjects.

[By Picking Garland, Obama Backs GOP Into Corner]

Garland also spoke to law students at Harvard Law School in August and Howard Law School in September. He did not discuss his nomination at either event. But he did offered students at Howard a little advice:

“Life has a lot of unexpected twists and turns,” he said.

Last month, Garland also met with some powerful Senate Democrats: Minority Leader Harry Reid of Nevada, Minority Whip Richard J. Durbin of Illinois, and Judiciary Chairman Patrick J. Leahy of Vermont. He has also met with California’s Dianne Feinstein and spoken over the phone with Minnesota’s Amy Klobuchar, both Judiciary members. The Judiciary Committee would preside over any confirmation hearing.

[Meeting with Merrick]

Leahy said he organized his meeting to check in on the nominee.

“I just wanted to see how he’s feeling, how he’s doing,” Leahy said. “And tell him, ‘You have a lot of us who are strongly supportive.’”

Just in case …

The Senate meetings could serve another purpose, according to a former White House aide who worked on Supreme Court confirmations. Those meetings help gauge what issues could be brought up in a potential confirmation hearing.

The prospect for a hearing is slim, given Judiciary Chairman Charles E. Grassley′s opposition to moving forward on the nomination. But Garland is preparing, just in case.

Garland also continues to meet with White House legal aides and other senior staffers. A White House official described those meetings as occurring “regularly” but “not every day.”

Top White House aides have described the nominee as meticulous and thorough, saying he has been intensely preparing for a possible date before the Judiciary Committee.

[Supreme Court Pick Resumes Personal Push in Senate]

The White House has declined to describe the nature of those sessions. Some analysts have speculated that Senate Republicans could yet pivot and take up Garland’s nomination during the lame-duck session, especially if they lose control of the chamber in the November elections.

Supreme Court nominees typically confer with White House officials on issues the high court might take up and matters important to specific Judiciary members. Garland’s preparations have likely been no different.

Aides usually present nominees with large binders of material that include major Supreme Court opinions and opinions from the nominees’ own record to refresh their memory, according to a former White House aide who spoke on the condition of anonymity.

When a hearing date is set, the preparation gets even more intense, with mock hearings up to four times a week in the run-up to the event.

Gorelick, who supervised Garland at the DOJ where she served as deputy attorney general under President Bill Clinton, said that if there is a hearing during the lame-duck congressional session, Garland won’t have much time to prepare. So he’s getting ready.

“He’s just doing what he needs to do,” said Gorelick, who speaks with him regularly. “He’s one of the most steady and mature people I know.”

Judicial deja vu?

For Garland, waiting to be confirmed by the Senate is a familiar experience.

Two decades ago, Garland’s nomination to the D.C. Circuit languished for a year and a half because of partisan gridlock and a disagreement over how many judges were needed for the court.

Bill Clinton nominated Garland to the circuit court in September 1995, and he was eventually confirmed in March 1997. At the time, Garland worked for Gorelick at the Justice Department, where he led the prosecution for the Oklahoma City bombing and Unabomber cases.

Garland continued working while his nomination was held up.

“I think he’s cut back to 15-hour days,” DOJ spokesman Carl Stern told The Associated Press at the time.

[Grassley Can’t Escape Supreme Court Debate]

Doing the same work hasn’t been an option this time.

“I have to imagine this limbo, and some reduction of work, has got to be a big change for him,” said Craig Green, one of Garland’s former clerks.

Green and two other former clerks described Garland as extremely diligent and hardworking. They recalled meeting Garland at his standing desk, going over each word of an opinion to make sure it was correct.

Clerks knew it was going to be a long night at the courthouse when Garland broke out a bowl of Cheerios around dinnertime, said Ishan Bhabha, who clerked for Garland in 2009 and 2010.

Still in play?

Garland’s prolonged nomination shows the increased politicization of the judicial nomination process, said Russell Wheeler, a visiting fellow at the Brookings Institution. 

[The Full Court Press for Merrick Garland]

“It’s gotten worse,” Wheeler said. “And it’s not as if this is some isolated phenomenon that’s occurring. It’s part of a larger problem of a Congress that is highly polarized.”

Wheeler said it was doubtful, though not out of the realm of possibility, that senators could also refuse to take up future nominees to the high court, arguing that they did not want to skew the bench. 

“That we could even talk about it illustrates the dire nature of the situation,” Wheeler said.

With the remaining Supreme Court justices roughly evenly split between liberal and conservative blocs, Senate Republicans have argued that voters should choose the future direction of the high court by picking the next president. Democrats have blasted that stance, accusing GOP senators of shirking their constitutional duty to provide advice and consent on judicial picks.

Senate Majority Leader Mitch McConnell of Kentucky has ruled out acting on Garland’s nomination during the lame-duck session, which occurs after Election Day and before a new Congress takes office in January. He reiterated during a Sept. 29 press conference that the next president would fill the vacancy.

But some senators are still holding out hope.

Arizona GOP Sen. Jeff Flake said last month that he was optimistic Republicans would push for Garland’s confirmation, especially if Democratic presidential nominee Hillary Clinton wins the White House. The logic is that she could appoint someone who is younger and more liberal than Garland.

“Reality,” Flake said, when asked why he was optimistic. “People will realize that nobody would describe Merrick Garland as conservative, but he’s more conservative than somebody that Hillary Clinton might want.”

Clinton has stopped short of saying she would renominate Garland, although Reid has said she would. Clinton did say at a recent debate that she would move “immediately” to fill the vacancy on the court if elected.

[Clinton Would Move Forward With Garland, Reid Says]

If Clinton signals she would renominate Garland, some Republicans might support confirming him in the lame-duck to quickly fill the vacancy.

New Hampshire Sen. Kelly Ayotte told her state’s public radio station recently that she would give Garland “full consideration” for a lame-duck confirmation if Clinton affirms he will be her nominee.

In the meantime, Garland is still waiting.

“It’s not a good thing. He’s a decent fellow” Utah GOP Sen. Orrin G. Hatch, a senior member of the Judiciary Committee, said of Garland’s lengthy nomination. “We’ll just have to see.”

John T. Bennett contributed to this report.Contact Bowman at and follow her on Twitter @bridgetbhc.