Monday, March 21, 2016
If you have been gnashing your teeth over Senate Republicans' stated refusal to vote on the nomination of Judge Merrick Garland to the Supreme Court, here is some information that may make you feel a little better.
- Judge Garland was a member of the Judicial Conference of the United States, which voted to approve the amendments to the FRCP that took effect on Dec. 1, 2015. (I and many others have described those amendments as "anti-plaintiff.")
- I cannot discover if Judge Garland actually is or has been a member of the conservative Federalist Society, but he has numerous links to the Society:
- He listed in the "Experts" link of the website of the Federalist Society. (It should be noted that the website states that a person’s listing on the Experts page does not imply any “endorsement or relationship between the person and the Federalist Society.”)
- Judge Garland moderated a panel called "Changing the Federal Rules of Civil Procedure: Has the Time Come?" on Dec. 9, 2010 hosted by the Federalist Society at the National Press Club in Washington, D.C. One of the panelists argued that discovery costs should routinely be shifted to the party requesting the discovery (something that defense interests have lobbied for ever since, with partial success in the amendment to Rule 26(c)(1)(B)). Another panelist argued that Rule 4(b), allowing a subpoena to issue against a defendant without a preliminary hearing, is unconstitutional. A third panelist described Twombly and Iqbal as “perfectly sensible cases.” Of course, merely by moderating the panel, Judge Garland cannot be understood to be endorsing any of these views.
- By my count, Judge Garland has also moderated about ten other panels hosted by The Federalist Society. See, e.g., here and here. In fact, at the panel on the FRCP described above, the person who introduced Judge Garland as the moderator said to him, “You are a repeat moderator for Federalist Society events.”
President Obama’s political calculation in nominating Judge Garland may be even shrewder than anyone’s given him credit for.