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Where Merrick Garland Stands Out: Guns, Criminal Law, Environment

By Casey C. Sullivan, Esq. | Last updated on

When we introduced President Obama's Supreme Court nominee, Chief Judge of the D.C. Circuit Merrick Garland, yesterday we described his judicial philosophy as "khaki." We still think it's a fitting descriptor. Judge Garland doesn't have the biting tongue of Justice Scalia or the strong liberal perspective of Justice Ginsburg.

But there are a few places where Judge Garland stands out. When it comes to criminal law, environmental law, and the Second Amendment, Garland's rulings deserve some extra attention.

Garland on Crime and the Environment

There are a few places where Garland is not entirely a centrist. When it comes to criminal law, this former federal prosecutor tends to be more conservative. (In the early 1990s, Garland worked for the Department of Justice, prosecuting crimes in D.C. and overseeing the investigation of the 1994 Oklahoma City bombings.)

Garland has, for example, rarely ruled in the favor of criminal defendants appealing their convictions. At times, he has broken even with the D.C. Circuit's conservative judges when they have found in favor of criminal defendants. Garland's views in the area of criminal law "are considerably more conservative than those of the man he would replace, Justice Antonin Scalia," according to NPR's Nina Totenberg,

If Garland leans right on criminal law, he tends to go left on the environment. When it comes to endangered species, pollution regulations, and agency deference, Garland is pretty green. He has often voted to support environmental protections and against industry challenges to EPA regulations and natural resources protection. That could become important as climate change, and government actions in response to it, becomes more central to America's political and judicial debates.

Garland and Your Guns

And then there's the Second Amendment. You'll probably hear, in the upcoming days, conservative voices saying that Garland is no supporter of Second Amendment rights. That argument was raised by the National Review last week. Garland's record shows that he "would vote to reverse one of Justice Scalia's most important opinions, D.C. v. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms."

Take those claims with a heaping load of salt. The argument is based on a 2007 vote by Judge Garland to rehear, en banc, the D.C. Circuit's ruling in Heller (then called Parker v. D.C.). Judge Garland never got that hearing and the Supreme Court went on to rule that the Second Amendment conferred an individual right to keep and bear arms for lawful purposes.

But, there's only so much you can read into a vote to rehear a case. First, the D.C. Circuit's ruling, while eventually approved of by the Supreme Court, broke significant constitutional ground. It was the kind of weighty decision that circuit courts will often rehear, and Garland was joined by a conservative colleague in voting for en banc review. Given Garland's past deference to Supreme Court precedent, it's more than a stretch to think he'd vote to undo Heller, based off the rehearing vote alone.

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