MERRICK GARLAND ON EMPLOYMENT LAW

Supreme Court

Last week, President Obama nominated Merrick Garland to fill the United States Supreme Court seat left vacant by Justice Antonin Scalia.  Garland is the Chief Judge of the D.C. Circuit Court of Appeals, where he has served since 1997.  When he was nominated to the D.C. Circuit Court by President Bill Clinton, he received bipartisan support and was confirmed by the Senate with a vote of 76-23.  This confirmation process will undoubtedly be more difficult, with Garland’s appellate record coming under careful scrutiny.  Garland’s record on employment and civil rights cases is of particular interest and importance to the employment attorneys at Babich Goldman.

Garland was considered for a Supreme Court nomination in 2010 for the seat left vacant by Justice Stevens and eventually taken by Elena Kagan.  When he was on the short list for potential nominees in 2010, Tom Goldstein of SCOTUSblog wrote an in-depth post (http://www.scotusblog.com/2010/04/the-potential-nomination-of-merrick-garland/) about Garland’s positions on various areas of the law.  In that post, Goldstein noted that when Garland participated in a divided ruling in civil rights cases, “it was generally in favor of the plaintiff.”  Additionally, “[t]he unanimous rulings in which Judge Garland participated similarly reflect a concern that civil rights plaintiffs receive an appropriate day in Court.”  Employment cases are particularly susceptible to being dismissed on summary judgment because it is difficult to prove employers’ motivations without direct evidence (which is rare).  Knowing that Garland’s record reflects a willingness to allow a jury to decide employment cases is great news for employees who have been victims of workplace discrimination.

A recent New York Times article (http://www.nytimes.com/2016/03/18/us/politics/merrick-garlands-record-and-style-hint-at-his-appeal.html) noted that Garland “was apt to side with workers claiming employment discrimination . . . .”  In a broader sense, the New York Times also remarked that Garland leaves his personal views out of his judicial opinions and “appears to apply Supreme Court precedents with punctilious fidelity even if there is reason to think he would have preferred a different outcome.”

Relatedly, Garland also has a strong record of giving deference to agency determinations, such as the National Labor Relations Board.  Goldstein’s article discusses “a dozen close cases in which the court divided” and in which Garland “sided with the agency every time.”  A recent blog post from Littler Mendelson, a law firm representing employers, (https://www.littler.com/publication-press/publication/who-merrick-garland-and-what-does-his-nomination-mean-labor-and) says “Judge Garland’s views on administrative deference are likely to give many employers pause” and that Garland “has shown a willingness to uphold administrative rules that burden employers.”

From everything I know about Judge Garland, I believe he would make a strong addition to the Supreme Court.  Stay tuned for updates on the confirmation process.

photo credit: <a href=”http://www.flickr.com/photos/71380981@N06/19552643193″>The Supreme Court of the United States Washington DC</a> via <a href=”http://photopin.com”>photopin</a&gt; <a href=”https://creativecommons.org/licenses/by-nc-nd/2.0/”>(license)</a&gt;

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