One hundred and twenty-seven days ago, on March 16, Merrick B. Garland was nominated to the Supreme Court. Therefore, he surpasses the record previously held by Louis D. Brandeis, who in 1916 waited 125 days between his nomination and his confirmation.
Garland’s long wait reflects the intense partisan politics that surround this Supreme Court vacancy – politics that were similarly intense in Brandeis’ day. In Brandeis’ case, opposition to his appointment combined scarcely veiled anti-Semitism with hostility to what some perceived to be his radical politics. In Garland’s case, the opposition focuses not on his religion or his perceived radicalism – he is viewed as a moderate liberal – but on the expectation that he would, nevertheless, by replacing the conservative stalwart Antonin Scalia, shift the court decisively to the left.
But the Brandeis precedent shows – and Garland is also likely to demonstrate, if he is confirmed – that even the most politically contentious nominees, once they join the Supreme Court, can serve as unifying figures who put the bipartisan legitimacy of the institution above their own ideological agendas.
The opposition to Brandeis was led by allies of J.P. Morgan, whom Brandeis had attacked for taking reckless risks with what he memorably called “other people’s money.” The former president William Howard Taft called Brandeis, who had embarrassed him during a congressional investigation into alleged corruption at the Interior Department, a “muckraker,” “emotionalist,” “socialist” and “hypocrite,” as well as “a man of infinite cunning” and “of much power for evil.”
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Once on the court, however, Brandeis was the opposite of a polarizing justice. After Taft was appointed chief justice in 1921, he and Brandeis buried the hatchet. Both cared deeply about the court’s institutional legitimacy, and Brandeis endorsed Taft’s efforts to promote unanimous opinions whenever possible. Embracing the approach of the great Chief Justice John Marshall, they both even joined opinions with which they disagreed. Brandeis, for example, joined an opinion by Taft in 1922 striking down the federal child labor tax law, even though he had voted to uphold a similar law before Taft’s arrival.
As a result, the Taft court, like the Marshall court in the early 19th century, was remarkably cohesive. Eighty-four percent of its opinions were unanimous, and about 13 percent were issued with a dissent. When Brandeis died in 1941, he was lauded by Chief Justice Harlan Fiske Stone, a Republican appointee, as a model of bipartisan judicial restraint.
There’s reason to believe that Garland, if confirmed, would also be a unifying figure. Chief Justice John G. Roberts Jr., like Taft, has sought to promote unanimous opinions. Garland would almost surely embrace this approach. He and Roberts are professionally close. Both clerked for the appellate judge Henry Friendly (who in turn clerked for Brandeis), and they served together on the United States Court of Appeals for the District of Columbia Circuit. During his 2005 confirmation hearing, Roberts praised Garland. “Anytime Judge Garland disagrees,” he said, “you know you’re in a difficult area.”
Indeed, if Hillary Clinton wins the presidential election, Garland’s most vocal opposition might come not from conservatives but from progressives, many of whom fear he is too conservative on issues involving law and order. In a thoughtful report that found Judge Garland “well prepared” to serve on the court, the storied NAACP Legal Defense and Educational Fund nevertheless expressed concern that he “regularly sides with the government’s position in criminal law matters,” a position the report attributed to “his lengthy professional background and perspective as a former federal prosecutor and senior D.O.J. official.”
At a time when the country is so fractured on the question of race and policing, it’s certainly legitimate to worry that the next justice might side consistently with the government. Still, Garland’s background suggests that, once he is no longer required to follow higher court rulings, he is well positioned to find common ground. In a speech he gave at the White House, Garland noted that earlier in his career, while trying to prosecute a violent gang in a housing project, he quickly learned the importance of reaching out to local communities and winning their trust. “The hardest job we faced was persuading mothers and grandmothers that if they testified,” he said, “we would be able to keep them safe and convict the gang members. We succeeded only by convincing witnesses and victims that they could trust that the rule of law would prevail.”
That experience, along with his involvement in prosecuting the Oklahoma City bombing, convinced him, he said, of the importance of “assuring victims and families that the justice system could work.” By all appearances, Garland is committed to increasing trust in the legitimacy of the law among all citizens.
If Garland is confirmed, he could be just what America needs to help bring us together at a time when justices and citizens of different perspectives have never seemed so far apart.
The New York Times
Jeffrey Rosen is president and chief executive of the National Constitution Center, a law professor at George Washington University and the author of “Louis D. Brandeis: American Prophet.”