The Columns

W&L Law Prof. David Eggert Comments on Obama SCOTUS Pick

— by on March 17th, 2016

President Obama today announced federal appeals court judge Merrick Garland as his choice to fill the slot on the U.S. Supreme Court created by the death of Justice Antonin Scalia.

Garland currently services as Chief Judge on the U.S. Court of Appeals for the D.C. Circuit. Current Justices John Roberts, Ruth Bader Ginsburg and Clarence Thomas all served on the D.C. appeals court before being elevated to the high court, as did Justice Scalia.

David Eggert, a visiting professor at Washington and Lee University School of Law, practiced law with Garland at the large Washington law firm of Arnold & Porter. Eggert describes Garland as a consensus builder with a brilliant legal mind.

“If confirmed, I think he would be an intellectual leader on the Court,” Eggert says. “I view him as a liberal counterpart to Chief Judge John Roberts. He understands the limits of the Court and would seek to decide cases on the issues of a particular case rather than using the bench as a soapbox.”

Eggert remembers Garland as an exceptional lawyer and gifted writer who was a welcoming mentor to his younger colleagues. Eggert said that though Garland viewed many issues from a liberal perspective, he was always willing to listen to the other side and was not ideologically motivated when it came to the law.

Eggert says this is consistent with his reputation on the bench.

“He is a judge’s judge. He cares about the development of the law but also understands the limits of what the law can do. His opinions are characterized by cogent legal analysis of the highest level, but he doesn’t go beyond what is necessary to resolve a particular case.”

Indeed, Garland is being praised as the perfect choice for the Supreme Court, and Eggert says it is hard to imagine a democratic nominee more likely to be confirmed, in normal times.

“His excellent credentials aside, President Obama is likely hoping to break the log jam and apply pressure on the Republicans to confirm him,” says Eggert. “However, it strikes me as not politically feasible at this point for Republicans to back away from their commitment not to consider a nominee until after the election.

Eggert added, “It would take immense political courage for Republicans to confirm the nomination in this environment, but it may well be the most principled course of action. If they hold up this nomination, what will Democrats do if a Republican president ever nominates a Supreme Court Justice?”

If Garland were to make it through the nomination process, he would become, at 63, the oldest justice appointed since 1971 when Washington and Lee alumnus Lewis Powell Jr., was named. Powell was 64 at the time of his appointment. Eggert notes that this bucks the recent trend of President’s appointing relatively young judges in hopes of ensuring their political legacy on the Court, where Justices have lifetime tenure.

“As one ages and faces experiences, you gain better wisdom in making decisions,” says Eggert. “This is the very quality we most prize in judges.”

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