JUDICIAL CRISIS NETWORK & AMERICA RISING

SQUARED RESPOND TO PRESIDENT OBAMA

NOMINATING MERRICK GARLAND TO U.S. SUPREME
COURT
Washington, DC The Judicial Crisis Network and America Rising Squared today released the
following statements responding to reports that President Obama will nominate DC Circuit Court of
Appeals Judge Merrick Garland to the seat of the late Justice Antonin Scalia on the U.S. Supreme
Court:
We are in the middle of an extremely contentious political season, and the nation is already deeply
divided on so many issues. The best thing for the nation is to trust the American people to weigh in
on who should make a lifetime appointment that could reshape the Supreme Court for generations.
President Obama wants to take that decision away from the American people because he and his
allies are committed to pushing the court in an extreme liberal direction, and Judge Garland is a
key step in that plan. Carrie Severino, Chief Counsel and Policy Director, Judicial
Crisis Network
Merrick Garland has been called the ideal judge to move the Supreme Court to the left and cement
President Obamas liberal legacy for decades into the future. He was recently considered for an
Obama cabinet post and clerked for the courts liberal icon, Justice William Brennan. At the DC
Circuit, Judge Garlands vote to re-hear a landmark case striking down strict gun restrictions in
Washington, DC is deeply concerning to all who care about our Second Amendment right to keep
and bear arms. Brian Rogers, Executive Director, America Rising Squared

WHO IS MERRICK GARLAND?

TOPLINE POINTS:

President Obama wants to move the Supreme Court dramatically to the left to cement his liberal
legacy for decades into the future, and Merrick Garland has been called the ideal judge to do that.

Judge Garlands record on the DC Circuit Court of Appeals proves that he would be a reliable fifth
vote for a laundry list of extreme liberal priorities, like gutting the Second Amendment, legalizing
partial-birth abortion, and unleashing unaccountable bureaucratic agencies like the EPA and the
IRS.

Judge Garland clerked for the courts liberal icon, Justice William Brennan, and was reportedly
considered for a cabinet post in President Obamas administration.

In multiple cases, Judge Garland has demonstrated a remarkable level of hostility toward the
Second Amendment right to keep and bear arms, voting to uphold D.C.s very restrictive gun
restrictions, and siding with the federal government in its plan to retain Americans personal
information from background checks for firearm purchases.

Judge Garland was the only dissenter in a 2002 case striking down an illegal, job-killing EPA
regulation (the Haze Rule) that would have, in the majoritys words, forced businesses to spend
millions of dollars for new technology that will have no appreciable effect on haze in the area.
Garland would have upheld the rule.

Judge Garland has a long record of deference to unaccountable government bureaucrats at the
Department of Labor, EPA and other agencies whose regulations kill jobs and stifle economic
growth.

RESEARCH BRIEFING:
Garland Has Been Called Ideal Obama Nominee To Move Court To The Left And Protect
Obamas Liberal Legacy
The Liberal Center For American Progress Think Progress Blog: On Most Issues,
Moreover, It Is Likely That Garland Would Side With The Supreme Courts Liberal Bloc
In Divided Cases. (Ian Millhiser, What we Know About The Judges Obama Is Reportedly Vetting For The Supreme Court, Think
Progress, 3/8/16)

National Journal: Garlands Overall Record Suggests That When The Supreme Court
Splits Along Liberal-Conservative Lines, He Would Usually If Not Always Vote With
Justices Stephen Breyer, Ruth Bader Ginsburg, And Sonia Sotomayor. But Garland is no
conservative. His overall record suggests that when the Supreme Court splits along liberalconservative lines, he would usually if not always vote with Justices Stephen Breyer, Ruth Bader
Ginsburg, and Sonia Sotomayor. (Stuart Taylor, Jr., Garland Born To Be A Judge, The National Journal, 4/24/10)
NY Magazines John Heilemann: Garland Is Progressive On Some Of The Most
Important Issues Facing The Court The Environment And Labor Law, To Name Two.
On some of the most important issues facing the court the environment and labor law, to name two
Garland is every bit as progressive as Stevens, and much more so than the older judge was when he
arrived on the high court. (John Heilemann, The President And The Persuader, New York Magazine, 4/23/10)
NY Magazines John Heilemann: Garland A Good Choice To Protect The Legislative
Gains Of His Presidency. And Garlands tendency toward statutory deference should be seen
as a crucial quality by Obama, among whose main goals with this pick must be to protect the
legislative gains of his presidency. (John Heilemann, The President And The Persuader, New York Magazine, 4/23/10)
NBC News Justice Correspondent Pete Williams: Garland Has The Right Kind Of
Ideology For President Obama. Williams: I mean, the thing is now presidents tend to want
younger nominees. If you look at the most recent trend, they're nominating people in their 50s. That's
not Merrick Garland, but he's the right kind of ideology. (NBCs Meet The Press, 2/14/16)
Garland Was Reportedly Considered For Cabinet Position In Obama Administration,
Clerked For Legendary Liberal Justice William Brennan

Garland Was Reportedly Considered For Cabinet Post In President Obamas Second
Term. Judge Merrick Garland, currently serving on the D.C. Circuit Court of Appeals, is seen as a
potential contender for Holder's job but also could replace Napolitano. Matt Olsen, the director of the
National Counterterrorism Center, is seen as a DHS contender as well. (Edward-Isaac Dovere, Obamas SecondTerm Cabinet, Politico, 11/7/12)

Garland Clerked For Legendary Liberal Champion Justice William Brennan. A magna
cum laude Harvard Law School graduate, he clerked not just for any Supreme Court justice but for
William J. Brennan Jr., the legendary liberal champion. (Jerry Markon, Merrick Garlands been considered for the
Supreme Court before. Is this his year?, The Washington Post, 3/10/16)

In 2007 And 2000 Rulings, Garland Cast Doubt On His Commitment To The Second
Amendment
In 2007, Garland Voted In Favor Of A Review Of The D.C. Circuits Decision
Invalidating The D.C. Handgun Ban, Which The Supreme Court Affirmed. Garland also
notably voted in favor of en banc review of the D.C. Circuit's decision invalidating the D.C. handgun
ban, which the Supreme Court subsequently affirmed. (Tom Goldstein, The Potential Nomination Of Merrick Garland,
SCOTUSBlog, 4/26/10)

Among The Judges Who Voted In Favor Of Granting The Petition For Rehearing
Were David S. Tatel And Merrick B. Garland, Both Clinton Appointees. After losing
before the three judge D.C. Circuit panel, the D.C. government petitioned for a rehearing en banc.
In other words, the D.C. government asked that the appeal be re-heard by a panel consisting of all
the judges on the D.C. Circuit Court of Appeals. On May 8, the D.C. Circuit announced that it had
voted 6-4 against granting the petition for rehearing en banc. Among the judges who voted in
favor of granting the petition for rehearing were David S. Tatel and Merrick B. Garland, both
Clinton appointees. (Dave Kopel, D.C.s Gun Ban: Round 2, Americas 1st Freedom, July 2007)

The Federal Appeals Court Let Stand A Ruling That Struck Down A Restrictive D.C.
Ban On Gun Ownership, But Garland Voted To Reconsider The Decision. A federal
appeals court in Washington yesterday let stand a ruling that struck down a restrictive D.C. ban on
gun ownership, setting the stage for a potentially major constitutional battle over the Second
Amendment in the Supreme Court. [DC Mayor Adrian] Fenty and other officials had asked the
full appeals court to review a ruling issued by a three-judge panel that struck down a part of the
D.C. law that bars people from keeping handguns in homes. With its 6 to 4 vote to reject a hearing
by the full court, the U.S. Court of Appeals for the D.C. Circuit sped up the timetable for a
showdown. Those voting to reconsider were Merrick B. Garland, Judith W. Rogers, David S.
Tatel and A. Raymond Randolph. (Carol D. Leonnig, Full Court Will Not Review Ruling, The Washington Post, 5/9/07)

In 2000, Garland Ruled In Favor Of Federal Government Plan To Retain Americans

Personal Information From Background Checks For Firearm Purchases. A federal
appeals court ruled yesterday that the FBI can hold on to gun purchase records for six months to
ensure that a federal computer system that conducts millions of instant criminal background checks is
working properly. The 2 to 1 ruling was a defeat for the National Rifle Association, which argued that
the practice amounted to an illegal national registration of gun owners. The NRA contended that the
law requires the FBI to destroy records of approved purchases immediately. Gun dealers are
required to submit information about prospective buyers to the computer system in an effort to
prevent sales to convicted felons, fugitives and other disqualified buyers. The information includes the
customer's name, sex, race, date of birth and state of residence. The computer is supposed to
immediately generate a response for gun dealers that approves, rejects or postpones the sale for

further investigation. U.S. District Judge James Robertson dismissed the NRA's lawsuit last year,
concluding that the Justice Department acted reasonably in establishing auditing standards. The NRA
asked the D.C. Circuit Court of Appeals to overturn Robertson's ruling. Appellate Judges David S.
Tatel and Merrick B. Garland, both Clinton appointees, rejected the NRA's argument. David B.
Sentelle, a Reagan appointee, dissented. (Bill Miller, Appeals Court Rules FBI Can Keep Gun Records, The Washington Post,
7/12/00)

In A 2000 Case, Judge Garland Ruled As Part Of A 2-1 Majority Against The
National Rifle Association (NRA) In Its Challenge Of A Justice Department
Regulation To Temporarily Retain Information Gathered During Background
Checks For Firearms Purchases. (Ben Conery and Kara Rowland, Battle Lines Already Forming Over Shortlist To Fill
Stevens' Seat On The Supreme Court, The Washington Times, 4/22/10)

Americas 1st Freedom Magazine: 2000 Case Signaled Garlands Strong Hostility To
Gun Owner Rights. The Tatel and Garland votes were no surprise, since they had earlier signaled
their strong hostility to gun owner rights in a 2000 case that had challenged the policy of Janet Renos
Department of Justice of retaining for six months the records of lawful gun buyers from the National
Instant Check System. At that time, the Tatel-Garland ruling flouted the 1968 federal law prohibiting
federal gun registration, and also flouted the 1994 law that created the National Instant Check System
and had ordered that instant check records of law-abiding gun purchasers be destroyed. (Attorney
General John Ashcroft later ended Renos registration scheme.) (Dave Kopel, D.C.s Gun Ban: Round 2, Americas 1st
Freedom, July 2007)

Garland Dissented In 2002 Case Striking Down EPA Haze Regulations

Garland Dissented From 2002 Ruling That Struck Down EPA Regulations. The
Environmental Protection Agency must rework part of its regulation to cut pollution in national parks
and wilderness areas, a federal appeals court said Friday. The EPA rule issued in 1999 requires states
to take action to reduce air pollution from power plants and other sources whose emissions drift often
hundreds of miles, causing haze and visibility problems in remote areas such as national parks and
wilderness. In a 2-1 decision Friday, a three-judge panel upheld the program's fundamental goal of
the states implementing pollution controls that would return parks and wilderness areas to natural
visibility over 60 years. But the ruling by the U.S. Court of Appeals for the District of Columbia
Circuit said an EPA directive that states must require certain groups of polluters to use the best
available technology to cut pollution undermines states' ability to decide how best to address the
problem and is against the law. Judge Merrick Garland filed a dissent, maintaining that the federal
Clean Air Act expressly delegates authority to the EPA to make judgments on what steps should be
required to reduce pollution. Judges Raymond Randolph and Harry Edwards disagreed. (F. Josef Hebert,
Court: EPA Must Rework Plan To Cut Pollution In National Parks, The Associated Press, 5/24/02)

Majority Opinion: Under EPAs Take On The Statute, It Is Therefore Entirely

Possible That A Source May Be Forced To Spend Millions Of Dollars For New
Technology That Will Have No Appreciable Effect On The Haze. Key provisions of the
Environmental Protection Agencys 1999 regional haze rule are unlawful, a federal appeals court
ruled May 24. The rules best available retrofit technology (BART) provisions are contrary to the
text, structure and history of the Clean Air Act, the U.S. Court of Appeals for the District of
Columbia Circuit held in American Corn Growers Assn. v. EPA. Under EPAs take on the
statute, it is therefore entirely possible that a source may be forced to spend millions of dollars for
new technology that will have no appreciable effect on the haze in any Class I area, the appeals
court said in remanding the rule to EPA. (Public Power Weekly Website, Accessed 3/15/16)

Garland Has A Long Record Of Deference To Unaccountable Government Bureaucrats

At The Department of Labor, EPA And Other Agencies Whose Regulations Kill Jobs And
Stifle Economic Growth
SCOTUSBlogs Tom Goldstein: Judge Garland Has Strong Views Favoring Deference
To Agency Decisionmakers. In A Dozen Close Cases In Which The Court Divided, He
Sided With The Agency Every Time. Judge Garland has strong views favoring deference to
agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency
every time. FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009) (Garland, J., dissenting) (dissenting
from panel opinion overturning NLRB's designation of workers as employees rather than
contractors); Northeast Bev. Corp. v. NLRB, 554 F.3d 133 (2009) (Garland, J., dissenting) (dissenting
from panel opinion overturning NLRB's determination that certain conduct was protected under
Section 7 of the NLRA); Financial Planning Ass'n v. SEC, 482 F.3d 481 (2007) (Garland, J.,
dissenting) (dissenting from panel opinion of Rogers, J., joined by Kavanaugh, J., invalidating SEC
rule exempting broker-dealers from Investment Advisor Act in certain circumstances); Alpharma v.
Leavitt, 460 F.3d 1 (2006) (per Garland, J.) (upholding FDA determination to approve drug, over
partial dissent by Williams, S.J.); Secretary of Labor v. Excel Mining, 334 F.3d 1 (2003) (per Garland,
J.) (joined by Rogers, J., upholding citations against mine operator issued by Secretary of Labor; over
dissenting opinion of Sentelle, J.); Train v. Veneman, 310 F.3d 747 (2002) (joining opinion of Rogers,
J., upholding Secretary of Agriculture's implementation of subsidy program, over dissent of Sentelle,
J.); American Corn Growers Ass'n v. EPA, 291 F.3d 1 (2002) (Garland, J., dissenting in part)
(dissenting from majority opinion upholding industry challenge to part of EPA's anti-haze
regulations), after remand Util. Air Reg. Group v. EPA, 471 F.3d 1333 (2006) (Garland, J., on panel
upholding regulations); Ross Stores v. NLRB, 234 F.3d 669 (2001) (Garland, J., dissenting in part)
(dissenting from panel's determination to overturn NLRB's finding that employer unlawfully
admonished employee for engaging in union solicitation); NRA v. Reno, 216 F.3d 122 (2000) (joining
opinion of Tatel, J., upholding regulations implementing Brady Act; over dissent of Sentelle, J.);
Iceland Steamship Co., Ltd. v. U.S. Dep't of Army, 201 F.3d 451 (2000) (joining opinion of Sentelle, J.,
to uphold Army Contracting Officer's decision; over dissent of Henderson, J.); American Trucking
Ass'n v. U.S. E.P.A., 195 F.3d 4 (1999) (Tatel, J., dissenting from the denial of rehearing en banc)
(Garland, J., joins dissent from denial of rehearing en banc of invalidation of EPA regulations under
non-delegation doctrine), rev'd Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001);
Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d 1050 (1997) (joining opinion of Silberman,
J., upholding interpretation of Social Security Act; over dissent by Sentelle, J.). (Tom Goldstein, The Potential
Nomination Of Merrick Garland, SCOTUSBlog, 4/26/10)

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