In a city where ambition is often rewarded when accompanied by partisan loyalty, Judge Merrick Garland advanced by finding the middle ground.
WASHINGTON — Twice a day, for breakfast and lunch, Benjamin Civiletti, attorney general to President Carter, invited his seven special assistants — mostly young graduates of the nation’s most prestigious law schools — to his private room at the Justice Department for casual conversation or friendly debate.
Merrick Garland, fresh from a Supreme Court clerkship, 26, showed little interest in chitchat. Even in staff meetings, he spoke so rarely that some colleagues figured him for shy or insecure.
But it became clear over time that Garland was silently working out his arguments, processing facts and testing alternatives. Surrounded by overachievers in a city full of people clamoring to be heard, he was waiting until he had something to say.
“He has a tendency to save up his points, and when he finally speaks up, his points come out almost like a Gatling gun,” said Lovida Coleman Jr., who worked with him then and remains a close friend. “Not in an unpleasant way, not in a way of showing off. He was smart and to the point.”
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Garland, now chief judge of the federal appeals court in Washington, D.C., and President Obama’s nominee to the Supreme Court, has deftly navigated the capital’s high-powered legal circles for decades.
In a city where ambition is often rewarded when accompanied by partisan loyalty, he has pulled off a rare feat, advancing as a centrist whose hallmark is finding the middle ground. His sharp mind — he was a standout in high school and at Harvard University, and won clerkships with legal luminaries — has long commanded attention. Civiletti liked to tease Garland’s fellow assistants that he had a “résumé that makes you want to cry.”
Other judges, law-school classmates and old friends describe his ability to deliver solutions, identifying areas of agreement, sometimes on narrow grounds, when people are divided. “The essence of who you are is who you are at an early stage,” said Abbe Lowell, a lawyer who worked alongside Garland as a fellow assistant to Civiletti. “Not only is he book smart, but he’s really able to use all of that intelligence to forge consensus.”
In his rise to the top, Garland, 63, has made canny decisions: choosing the Justice Department aide job rather than starting his career at a prominent law firm; later leaving a lucrative partnership to get trial experience as a federal prosecutor. He calls himself “an accidental judge,” because he was offered a judicial appointment while in line for a top Justice Department position.
“Look at his record,” Coleman said. “Every choice is virtually perfect.”
He was guided in the ways of D.C. and the law by various mentors: a Supreme Court justice, an Illinois congressman-turned-judge, a former corporate lawyer. But Garland has thrived in part, many from both parties say, because he is nice. Several people used similar, somewhat surprising, language to describe the tough-minded legal advocate: “A sweet spirit,” Frank Keating, a former Oklahoma governor and a Republican, put it.
From his days as a high-school student leader in the Chicago suburbs in the late 1960s — where he spoke up for free speech yet shunned protests against the Vietnam War — to his time at the Harvard Law Review, and through his years in D.C., Garland has accumulated friends and seemingly made few enemies.
But when it comes to a Supreme Court confirmation process, his careful course could hurt as much as it helps.
With Republican leaders refusing to hold hearings on his nomination and insisting Obama’s successor should pick the next justice, conservative advocacy groups say there is proof — such as Garland’s votes on gun rights or that he volunteered for Democrats such as Bill Clinton and Michael Dukakis — he is hardly as moderate as he may seem. Those on the left have their own complaints — that he is not a bold thinker or reliably liberal — but have mostly held back.
“He’s not an intellectual leader of the left or the right,” said Tom Goldstein, an appellate lawyer and the founder of SCOTUSblog, a website devoted to Supreme Court news. “The people out there cheering for the Garland nomination are the professional legal class in Washington, D.C.,” Goldstein said. “What you don’t see are the progressive, committed liberals saying, ‘Here’s our guy, let’s march into battle for him.’ ”
In a 2013 panel discussion, “Life Lessons Learned,” the judge revealed his approach to dealing with the harshness of the city that has been the backdrop to his life’s work. “They tell you in Washington that if you want a friend, get a dog,” he said then. “That is not true. Get a family. This is a hard place to be.”
During his 19 years on the bench, Garland has tried to resist what can be an isolating job. He turns up at investitures, portrait unveilings and charity dinners and socializes with members of the city’s legal elite.
He holds annual summer reunions for his fiercely loyal clerks at his home in Bethesda, Md., serving bagels and lox and cooing over their children, whom he calls his “grand-clerks.”
He tutors disadvantaged children and performs the occasional wedding. At the 2000 Nantucket ceremony of Beth Wilkinson, a top aide to him at Justice, and David Gregory, the former host of the NBC program “Meet the Press,” the nervous judge started the ceremony without the bride. “David turned to him,” Wilkinson recalled, “and said, ‘Merrick, don’t you think we should wait for Beth?’”
In Civiletti’s office, the future judge kept the attorney general briefed on antitrust matters at a time the Justice Department was trying to break up AT&T and IBM, and he helped address the legal fallout from the Iran hostage crisis in 1979. Some aides tried to use their access to push ideological agendas with the attorney general.
“That wasn’t Merrick,” Civiletti recalled in an interview. “He was interested in getting the right answer.”
In the office, he and the other young assistants were mentored by Victor Kramer, counsel to the attorney general. Kramer had spent more than a decade at the corporate law firm Arnold & Porter before quitting to help provide legal services for the poor
He urged lawyers to work in public service. “In private practice, I spent my time learning more and more about less and less,” he told the assistants, one of them, Eric Richard, recalled.
Garland, who joined Arnold & Porter in 1981, ultimately chose much the same path. He was so eager to work on trials at the firm, he later said, that he spent “one winter in Helena, Montana, in minus-50 degrees.” But in 1989, shortly after becoming a partner, he abruptly quit, trading his corporate office, big paycheck and a portfolio that included antitrust cases, to become a workaday prosecutor in the office of the U.S. attorney in D.C. (His financial-disclosure forms show he is nonetheless wealthy, with $6 million to $23 million in assets, including trust funds established by the parents of his wife, Lynn.)
In 1995, Jamie Gorelick, a top Clinton administration Justice Department official, hired Garland to be her right-hand man.
At Justice, Garland also proved adept in the spotlight. He ran several high-profile national-security prosecutions, including the case of Ted Kaczynski, known as the Unabomber, and the attack at the 1996 Olympics in Atlanta.
But it was his work on the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City that helped burnish his credentials with Republicans there and his reputation as a problem solver. He also knew how to navigate what Patrick Ryan, the former U.S. attorney in Oklahoma City, called the “daggone snake pit” of D.C.
When Stephen Jones, the lawyer for the accused bomber, Timothy McVeigh, complained to Garland about the conduct of a prosecutor, he said, the issue was quickly resolved. When Ryan, a Democrat, refused Garland’s request that he ask Oklahoma City federal judges to recuse themselves, Garland did not insist.
“I’m not used to Eastern politics,” Ryan said. “I found that most everybody with the exception of Merrick that worked in Washington, you have to be careful about trusting them.”
Does his own research
Rather than have his clerks write long memos for him, as is the custom of many other judges, Garland insists on doing his own research, for fear he might miss some nuance or the finer points of an argument. Then, he said: “We just argue it out. I pick clerks who can say no to me, in a nice way; who can say, ‘That’s wrong, judge, and this is the reason why.’”
His colleagues say that as chief judge, a position he assumed in 2013, he can find a sliver of common ground and build a decision around that. One pointed to a politically charged case that challenged the constitutionality of a ban on federal contractors making political donations.
Garland pulled liberal and conservative judges toward the middle, issuing an opinion that upheld the law, but on the narrowest grounds. The final vote was 11-0; the Supreme Court refused to hear an appeal.
Having been passed over by Obama twice — first in favor of Sonia Sotomayor, and then Elena Kagan, both more palatable to the political left — Garland is, the Obama administration hopes, a man for this moment. Still, even with his mostly-in-the-middle record, it may not be enough.
“If you wanted to game a Supreme Court nomination, you would go to one side or the other,” said Neal Katyal, former acting solicitor general. “Merrick surely had people whispering in his ear for years to do that.”