If (and given Congressional Republicans’ statements, it’s a big if) Judge Garland is confirmed, it would have far reaching consequences for the Supreme Court and the country. But just what those consequences will be are the subject of much speculation. As it pertains to the issue of immigration, which rarely arises in the District of Columbia Court of Appeals, one might gleam insights about his likely positions by examining his record and decisions on other matters.
One of the most important hints about Merrick Garland’s judicial tendencies could stem from his history as a prosecutor. Prior to being appointed to the Court of Appeals by Bill Clinton in 1997, Judge Garland worked for the Justice Department, helping prosecute Oklahoma City bombers Timothy McVeigh and Terry Nichols. This experience surely influenced his tenure on the Court of Appeals, with analysts observing a tendency to rule in deference to law enforcement over defendants and petitioners in cases of criminal law. This could have negative consequences for immigrants and their representatives in cases involving instances of potential criminality.
Indeed, a tendency of deference to both the government and other courts runs throughout Judge Garland’s career. For example, he agreed with the Bush administration in joining an opinion that Guantanamo Bay detainees were not entitled to a right to judicial review of their status in federal court. He also sided with the Drug Enforcement Agency in ruling against the rescheduling of marijuana’s drug class, asking “Don’t we have to defer to their judgment?” and noting “We’re not scientists. They are.”
Yet his decisions do not necessarily reflect a conservative political stance, but a conservative judicial philosophy. He tended to rule in favor of government agencies, such as the Department of Justice of the Environmental Protection Agency. Judge Garland also ruled that a Washington D.C. law restricting handguns was constitutional, to the chagrin of those opposed to gun control. He can best be described as a moderate centrist with a tendency of siding with the government.
Judge Garland’s history could, as one might expect, be either a boon or a setback to immigration rights activists depending on the context. His deference to the government might be an asset under a politically liberal government, where, for example, he might be expected to rule in favor of Obama’s executive actions on immigration: the Deferred Action for Parents of Americans and Deferred Action for Children of Americans, which seek to prevent the deportation and breaking up of immigrant families living in the United States with mixed statuses. In regards to the Freedom of Information Act, Judge Garland has tended to rule in favor of such requests in such a way that could help immigration attorneys or activists groups who are challenging the government for access to documents or records relevant to their cases.
If confirmed, Judge Garland would be unlikely to radically alter the shape of the Supreme Court through his own power in either direction. His deferential philosophy makes it even more important that the American people elect politicians who have experience with immigrant communities. While it is impossible to know with certainty, it is unlikely that Judge Garland would take bold stances in either support or opposition on any particular issue. More likely, he will probably follow the direction taken by government. It is thus essential that the public pushes the elected branches of government – legislative and executive – to enact positive legal reforms for immigrants.