Washington Memo: Liberals Are Still Angry, but Merrick Garland Has Reached Acceptance
“Can you not find it?” he asked. “Does it not exist?”
Thirty years ago, Judge Robert H. Bork’s failed Supreme Court nomination introduced a new verb into the American lexicon. But if “to Bork” means to derail a divisive nominee’s candidacy through a sustained attack on the candidate’s record, then “to Garland” surely means to kill a respected nominee’s chances by simply letting him linger in limbo, virtually ignoring him while refusing to consider his candidacy.
Judge Garland, now 64, had been on the shortlist for the court twice before, and he cried when President Barack Obama announced his nomination to fill the vacancy created by the death of Justice Antonin Scalia. Now there is a new nominee, Judge Neil M. Gorsuch, put forward by President Trump, and next month he will have the hearing Judge Garland was denied.
If the experience left Judge Garland frustrated or disillusioned, he has never said so publicly. He declined to be interviewed for this article, and his friends say they are more aggrieved than he is.
“I found it very hard to put behind me what happened to him in the past year,” said Danielle Gray, a former Garland clerk. “He did not react with anger or self-pity, and that reinforced for me the character and decency of Judge Garland. In many ways, it made me feel worse.”
Election night must have been particularly hard. Had Hillary Clinton defeated Mr. Trump, Judge Garland might have been on the court, or on the way to the court, by now, either confirmed in the waning days of the Obama administration or renominated by the new president.
“He started the evening finally at the point at which his nomination could go forward, and ended it at a point where it was dead,” said Jamie S. Gorelick, who has known Judge Garland since they went to Harvard together and who worked with him in the Clinton Justice Department. “And that’s in a space of only a few hours.”
When she spoke to him later, “he was extremely disappointed, as everyone was, and sad about the closing of this chapter in his life,” Ms. Gorelick said. But, she added, “I’ve never seen him feel sorry for himself.”
As in the classic paradox envisioned by the Austrian physicist Erwin Schrödinger, in which a cat enclosed in a steel chamber may be simultaneously dead and alive, Judge Garland had to go into the process with two opposing ideas in his head.
One was that the nomination was viable. The other was that it was not because the Republicans would hold to the pledge by Senator Mitch McConnell of Kentucky, the majority leader, to block any Obama nominee so as to leave the decision to the next president.
The situation was highly unusual and possibly unprecedented. If nothing else, refusing to even hold confirmation hearings for a Supreme Court nominee was an aggressive break with Senate protocol.
But Judge Garland proceeded as if it were a normal situation and he were a normal nominee. Among other things, he met all of the Republican senators who agreed to meet him, about a dozen in the end.
“He prepared for each meeting the same way, I assume, he prepares for oral arguments,” said Josh Pollack, Mr. Obama’s special assistant for legislative affairs. “He made sure he was fully aware of all the issues, their backgrounds, what mattered to them.”
A few Republican senators said at the time that they believed the Senate should follow its regular procedures and allow the normal confirmation process to proceed. A few more said privately that they were very sorry, but they could not do anything for the judge. In the end, none of the preparation or the meetings made a difference.
“They repeatedly would reiterate that it wasn’t about him — that he was incredibly impressive and well qualified, but this was about politics,” Mr. Pollack said. “Virtually no one, with one or two exceptions, tried to even challenge him on anything of substance.”
Efforts to extract post-mortem comments from some of the more sympathetic Senate Republicans, like Susan Collins of Maine and Orrin G. Hatch of Utah, were unsuccessful. By way of making the point that Republicans are not the only ones who play politics with judicial nominations, a spokesman for Senator Lindsey Graham, Republican of South Carolina, emailed a link to the Wikipedia page for Miguel Estrada, a lawyer whose nomination to a federal judgeship by President George W. Bush was thwarted by the Democrats through a filibuster 15 years ago.
Working from a conference room at the Old Executive Office Building, the Garland team sought repeatedly to persuade more Republicans to meet the nominee. It was frustrating and annoying for Judge Garland’s allies. “But Merrick didn’t get frustrated; he got focused,” said Brian Deese, a senior adviser to Mr. Obama.
As an example, he cited how Judge Garland tackled the questionnaire that nominees submit to the Judiciary Committee before confirmation hearings, providing a full account of their writings and opinions.
“Basically, you’re submitting it to the committee even though they’ve said they won’t hold a hearing,” Mr. Deese said. “You could hear a Washington cynic saying, ‘I’ll do the short version,’ or not do it until they hold the hearing. But that’s not Merrick.”
The judge’s responses were so thorough that the 100-odd-page questionnaire grew to several thousand pages, and “had to be delivered to the Senate in bankers’ boxes,” Mr. Deese said. “He is meticulous and he cares about this work, so he reviewed everything personally.”
Spending weeks helping prepare for hearings that never took place, the team also ran mock sessions in which Judge Garland was interrogated by officials playing the part of senators on the Judiciary Committee.
As all this was going on, Judge Garland went on with the rest of his life. He continued to perform his administrative responsibilities at the appeals court, though he did not hear cases. He mourned his mother, his father-in-law and his old friend Judge Abner J. Mikva, whose deaths while the nomination was pending shook him emotionally, friends said.
He continued to tutor children at J. O. Wilson Elementary School in Northeast Washington, where he has volunteered for nearly 20 years and where he was the featured speaker at the fifth-grade graduation ceremony in June. Tearing up a little, as he tends to do at such moments, Judge Garland exhorted the students to work hard and to not give up.
“When you watch Steph Curry glide down the basketball court, and Beyoncé dance across the stage, it sure looks easy,” he said. “But every step is a result of hours and hours of practice, discipline and determination.”
Heidi Haggerty, the school’s principal, said that during the nomination process, she and the judge joked about how “he couldn’t just hop into the car” and drive over, on account of his new Secret Service detail.
The judge also kept in touch with a large circle of friends and former clerks, whom he treats as a kind of extended family. Several said in interviews that when they called to offer support, he ended up comforting them.
His friends sought amusing ways to cheer him up during the drawn-out process, bringing elaborate jigsaw puzzles to help him while away the time, Ms. Gorelick said. They also gave him a piñata as a joking reference to a remark by Senator John Cornyn, Republican of Texas, that any Obama nominee for the court would “bear some resemblance to a piñata.”
After the election, the judge took a little time off, friends said. He and his wife, Lynn, thanked friends and supporters over dinners at their house. And on Jan. 30, two colleagues on the appeals court, Judges David S. Tatel and Laurence H. Silberman, hosted a more formal affair at the Metropolitan Club here.
“It was kind of, ‘Welcome back, Garland,’” Judge Tatel said. “‘Would we have been happy to see you on another court? Yes, but we’re glad you’re back.’”
Judge Tatel added, “He’s fully engaged and he’s back to being an extremely good chief judge.”
One of the frustrations of writing about Judge Garland is that no one, not even a Republican, seems to be able to find a bad thing to say about him. And that is what makes what happened to him even harder, his admirers believe.
“He did everything right — he never said a cross word, he never made a joke about it, he never politicized it,” said Tali Farhadian Weinstein, a former Garland clerk.
“The character he showed through the whole process proves how qualified he was for the job,” she added, “and it adds to the tragedy that he didn’t get it.”
An earlier version of this article misspelled the name of an appeals court judge. It is Laurence H. Silberman, not Lawrence.
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