Judge Merrick Garland, President Obama's nominee for the U.S. Supreme Court, has ruled against gay plaintiffs three times. This is the kind of record that might usually guarantee that Republican senators would be eager to confirm him. It might also be the sort of record that would prompt LGBT groups to urge a more cautious review.
Though the Human Rights Campaign expects to support Garland's nomination, it and other LGBT groups and leaders, such as U.S. Senator Tammy Baldwin, are taking some time to study his record before endorsing him. But most Senate Republicans are, for the moment, standing firm in their refusal to consider the nomination —at least, not until they calculate that Garland would be a better nominee than the next president might select. (Senate Majority Leader Mitch McConnell promised Sunday "that's not going to happen.")
"I cannot imagine that the Republican-majority Senate, even if it were soon to be a minority, would want to confirm a judge that would move the court dramatically to the left," McConnell told Fox News anchor Chris Matthews.
And that seems to be the growing assessment of Garland: that, despite a relatively moderate to conservative record, he would become part of the Supreme Court's liberal bloc.
New York Times legal reporter Adam Liptak says political scientists believe Garland would be "well to the left" of Justice Anthony Kennedy. Kennedy is the justice who has provided the key swing vote for the Supreme Court's most historic decisions in favor of equal rights for LGBT people.
"He would be the fifth member of a liberal bloc on the court," said Liptak, in a video accompanying his March 17 article. University of Chicago Law Professor Eric Posner said he thinks Garland "seems liberal" on civil rights.
Much of this speculation appears based on an analysis that found justices tend to vote based on the ideology of the president who appointed them. Garland, who has served on the U.S. Court of Appeals for D.C. for 19 years, was appointed by Democratic President Bill Clinton. But that's not foolproof conclusion. Justice Kennedy was appointed by President Reagan. And Justice William Brennan, one of the Supreme Court's most liberal justices, was appointed by President Eisenhower. (And Garland clerked for Brennan from 1978-79.)
On the day President Obama announced Garland's nomination, the Human Rights Campaign issued a statement, calling him "highly qualified." But the group stopped short of an endorsement. A spokesperson said HRC would make an official endorsement decision after it does its own examination of his record and after Garland gets a hearing from the Senate Judiciary Committee.
"President Obama has a history of appointing pro-equality Supreme Court Justices," said the spokesperson, referring to Justices Sonia Sotomayor and Elena Kagan. "We are confident that, in Judge Garland, we will find another Associate Justice to the Supreme Court who stands on the side of fairness and equality."
Garland has an extensive record. He has participated in thousands of cases. Three of those cases had gay plaintiffs, but all three failed to get the relief they sought from three-judge panels that included Garland.
The first case involved an Ohio man, Jerry Szoka, who operated a low-power FM radio station in 1997 specifically to reach gay men and women and the arts community in Cleveland. But the Federal Communications Commission had banned the operation of such small stations —known as microbroadcast stations—because they were causing interference with major radio stations that served the broad general public. Szoka operated the radio station in defiance of the ban and without ever applying for a radio operator's license. The FCC ordered him to stop broadcasting and to pay an $11,000 per day fine for every day in defiance. In Grid Radio v. FCC, Szoka filed suit in federal court to challenge the order, and jurisdictional issues brought the case before the D.C. Circuit. Szoka said the ban on microbroadcasting violated the Communications Act of 1934 and his First Amendment rights to serve a community that was "not adequately served" by full-power stations. The panel rejected his first claim, noting that Szoka never applied for a license, then rejected his First Amendment claim.
"Valuable as Grid Radio's broadcasts may have been," stated the 2002 panel decision penned by Judge David Tatel, "we think it clear that the Commission had no obligation to consider the station's individual circumstances before shutting it down." The panel said the FCC was simply enforcing a ban on microbroadcasting. "Permitting Szoka or anyone else to operate without a license as a means of challenging the microbroadcasting ban…could produce the very chaos…the licensing regime was designed to prevent."
In the second case, Turner v. Department of the Navy (decided in 2003), Petty Officer Jim Turner sued the Secretary of the Navy to overturn his "other than honorable" discharge. In 1994, when the military's policy of banning openly gay people was still in place, several of Turner's male peers on the USS Antietam accused him of making sexual advances. The ship's captain and an administrative board declared him guilty and discharged him. A Board for Correction of Naval Records said there was insufficient corroboration of the charges and recommended his record be cleared. But a deputy assistant Secretary for the Navy rejected that recommendation.
Turner sued in federal court, echoing the BCNR's finding that the evidence against him had been insufficient. Turner also argued that his captain violated the "Don't Ask, Don't Tell" regulations by initiating an investigation without "credible evidence" and that an investigator violated the policy by asking one of the sailors about his sexual orientation.
The appeals panel, which included Garland, noted that Turner had "a respectable record of seven years of military service" and that the charges against him initially seemed more like "inflamed" interpretations of "horseplay." But it upheld a federal district court, saying proper procedures had been followed. The decision was written by Senior Circuit Judge Stephen Williams.
In the third case, Garland was on a panel with then appeals court Judge John Roberts Jr., who now serves as chief justice of the U.S. Supreme Court. The case was International Action Center v. U.S. The 2004 decision addressed a lawsuit filed by a coalition of groups and individuals who opposed "racism, sexism, oppression of lesbians, gays, bisexuals and transgendered people." It sued federal and local law enforcement personnel for injuries inflicted on protesters at President George W. Bush's first inaugural parade. The protesters said that, while engaging in "lawful, peaceful activity" along the parade route, undercover officers struck them and sprayed them with pepper spray. The lawsuit alleged that supervisors of the undercover officers should be held personally liable for their injuries. The supervisors argued they had qualified immunity and a three-judge panel that included Garland agreed. Roberts wrote the panel opinion, saying plaintiffs failed to establish that the police supervisors were guilty of misconduct in their training and supervision of police, rather than "mere negligence."
Jon Davidson, national legal director for Lambda Legal, said the three gay-plaintiff cases "don't tell us very much about his judicial philosophy or views of constitutional and legal issues relating to sexual orientation, gender identity or HIV status."
Lambda and many groups and court enthusiasts are poring over Garland's record now, and many will likely find details that will encourage or encumber their support for the nominee. For instance, the Boston Globe reported Saturday that Garland, "under pressure from a leftist group" during the 1970s' Vietnam protest era at Harvard undergraduate school, asked a student-faculty committee to consider having a campus referendum on whether the school should allow ROTC back on campus. He then later voted against holding a referendum. That left the existing ban intact. Without predicting how Republican senators might react, the Globe noted that "any whiff of an antimilitary record will raise red flags for Republicans…."
More likely, it will prompt Republicans —if they ever give Garland a confirmation hearing — to quiz him over a similar ROTC flap that emerged six years ago during the confirmation hearing for the last new justice, Elena Kagan. Kagan had been dean of Harvard Law when Harvard had a policy of barring recruiters from campus because of the military's policy of banning openly gay people. During her confirmation hearing, Republican senators grilled her about it. Kagan said she found a way to let military recruiters have "full access" to students while still enforcing the school's ban against sexual orientation discrimination.
The military's ban no longer exists and most campuses no longer bar military recruiters but, if Kagan's confirmation can be somewhat of a guide, Garland or the next justice nominee can expect to field questions from Republican senators asking whether he is a "legal progressive," whether he thinks the Supreme Court was right to strike down state bans on marriage for same-sex couples, and religious objections to anti-discrimination laws that protect LGBT people. And if history can be a guide, the nominee's answers will likely leave everyone guessing until they're on the high bench.
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