How Worried Should Women Be About Obama's Supreme Court Nominee?

If his nomination is approved, Merrick Garland could easily be the deciding vote on the most important abortion rights case in decades—and he has no known record on reproductive issues.

|
Mar 17 2016, 4:15pm

Getty Images

President Obama's nomination of DC Circuit Judge Merrick Garland is the first step towards filling the seat left vacant by Antonin Scalia. The appointment of a liberal judge could profoundly alter the ideological make-up of the bench. With two major reproductive rights cases to be decided in 2016, Garland's views on women's rights over their bodies could have major consequences.

But did Obama nominate a pro-choice judge to fill the bench's ninth seat? Nobody knows.

Even after serving for over twenty years as a federal judge, Garland has no record on abortion, and none of his previous rulings give much insight on where he stands on women and women's health. While Garland's lack of abortion-related controversy could be considered strategically advantageous for Obama, who must get his nominee through an obstructionist Republican pledge to oppose any Justice nomination, it has the reproductive rights community in a state of suspense. Several sources in different abortion advocacy organizations tell Broadly they are in a "wait-and-see" mode.

Read More: All the Cute, Coy Ways Republicans Could Block Merrick Garland

"We all have a right to know where Merrick Garland stands on core constitutional questions of women's privacy, dignity, and equality," says Kaylie Hanson, the national communications director for NARAL Pro-Choice America. "Hearings in the Senate would give us an opportunity to hear those stances."

The only shred of circumstantial insight that's been so far unearthed (by the anti-abortion group Americans United for Life) in regards to Garland's views on abortion is a talk Garland gave for a 2005 release of a book about late Justice Harry Blackmun. Blackmun authored the majority opinion on Roe v. Wade. The book cites and draws largely from Blackmun's own personal papers, which Garland referred to as "as a great gift to the country." While this was enough for the AUL to condemn Obama's nomination of Garland, it gives the rest of us very little.

Here's what we do know: Garland is 63 and married, with two children. He is Harvard-educated. He clerked for Supreme Court Justice William Brennan, a progressive who supported abortion rights. As a federal prosecutor, Garland oversaw the 1995 Oklahoma City bombing case and the prosecution of Unabomber Ted Kaczynski.

Garland is a "true moderate," according to David Pozen, an associate professor of law at Columbia Law who clerked for Garland during the 2008-2009 term. "He is always civil and considerate in his rhetoric; he does not like to be splashy or to provoke," Pozen told Broadly. "And his opinions are marked by a minimalist approach that avoids deciding legal issues that don't need to be decided to resolve the case at hand."

Pozen also notes Garland's measured and thorough approach to cases. "He personally read every brief, every relevant case, every relevant item in the record," Pozen said. "I think he viewed that level of care as his ethical duty. He was so self-sufficient that I sometimes wondered whether he needed any clerks at all."

We all have a right to know where Merrick Garland stands on core constitutional questions of women's privacy, dignity, and equality.

During Garland's nomination in the White House Rose Garden yesterday, Obama described Garland as "one of America's sharpest legal minds." Already, Senator Mitch McConnell, the majority leader, has reiterated his position that Garland's nomination should be blocked and that filling Scalia's empty seat should be a task for the next president.

Garland has been through this runaround before: In 1995, when President Bill Clinton nominated Garland for an opening on the D.C. Circuit, Senate Republicans stalled, proposing that maybe the vacant seat should just be left empty. Clinton nominated him again in 1997, and he was confirmed by a vote of 76-23.

In fact, seven Republicans who voted to confirm Garland back in 1997 are still in the Senate today, including Orin Hatch (R-Utah), who, back then, called Garland "not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration." Nearly 20 years later, everything old is new again. McConnell, who voted against Garland back then, is opposing the nomination process itself—though it's less about Garland than it is about Obama.

"The American people may well elect a president who decides to nominate Judge Garland," McConnell said; however, he wants to hold the entire process until Obama leaves office. "The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country," McConnell added.

This is exactly why a lot of women's health and reproductive rights organizations are waiting with bated breath. Earlier this month, the court heard Whole Women's Health v. Hellerstedt, which is arguably the most important abortion rights case since Roe v. Wade. The case centers around the legality of a 2013 Texas law that virtually bans abortion in the state by creating regulations that most clinics can't meet, requiring physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic and mandating that the clinic itself meet the standards of a hospital operating room. The regulations have forced more than half of clinics in the state to close.

The four liberal justices are expected to vote against Texas, the three conservative justices are expected to vote in favor, leaving Kennedy the swing vote, and opening the door for a tie. (In the hearing, Justice Kennedy questioned whether there was enough evidence to support the claim that it was the Texas law that forced those clinics to close and whether the case should be sent back to the lower court to determine this.)

Read More: The Infuriating, Terrifying Reality of Abortion in America

Next week, the court will hear arguments in Zubik v. Burwell, a case brought by several Catholic parties, challenging no-cost birth control covered by the Affordable Care Act. If the plaintiffs win, "it could be disastrous for the hundreds of thousands of employees at Catholic nonprofit organizations," the group Catholics for Choice said in a statement yesterday. It would also affect "Catholic elementary and high schools that together employ 163,431 lay teachers."

"With seven in ten Americans supporting legal access to abortion, we have a right to know where our justices stand on this important issues," NARAL President Ilyse Hogue said yesterday in a statement.

Nancy Northrup, president and CEO of the Center for Reproductive Rights echoed the sentiment, saying the justices "are responsible for some of the most consequential legal decisions affecting the lives of all Americans" and urging the Senate to "put partisan politics aside and move quickly to fulfill its constitutional duty by immediately holding confirmation hearings"—the idea being Garland's views on these issues would only surface publicly in a hearing.

From Obama's perspective, nominating Garland now could be seen as a compromise. The president pled with Senate Republicans in his speech yesterday for forward motion. "To suggest that someone as qualified and respected as Merrick Garland doesn't even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two- thirds of Americans believe otherwise, that would be unprecedented," he said.

Moving forward with hearings would be the only way to lift the veil on some of the mystery around Garland and where he stands on crucial issues.