Q&A on Supreme Court nominee Merrick Garland with Law School Prof. Justin Driver

President Barack Obama announced on March 16 his nomination of Merrick B. Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court. Garland, who has served on the D.C. Circuit since 1997, would fill the vacancy left by Justice Antonin Scalia, a former University of Chicago law professor, who died in February.


One of Garland’s law clerks at the D.C. Circuit was Justin Driver, now the Harry N. Wyatt Professor of Law and Herbert and Marjorie Fried Research Scholar at the University of Chicago Law School. Driver, who clerked for Garland after graduating from Harvard Law School, shared some of his experiences with the appeals judge, and discussed what lies ahead if he is confirmed despite the pledge by Republicans in the U.S. Senate to block Garland’s nomination.

What was it like to work with Judge Garland?

It was an incredibly stimulating experience and among the most formative of my entire life. Judge Garland is an unusually sharp and analytical legal thinker. He possesses a truly fine mind, and he is meticulous in his approach. One thing that is notable about him as a judge is that he is one of the few judges on the courts of appeals who write their own opinions. After his law clerk gives him a draft, he re-envisions it from the ground up. He enjoys discussing each opinion in depth, and before it goes out into the world he reads each word aloud with two clerks standing by his side.

What is his approach to the law?

In deciding the legal issues presented, Judge Garland tends to dispose of the cases in a narrow way that honors existing precedents. On the Court of Appeals, his general approach is broadly compatible with so-called “judicial minimalism,” which seeks to avoid issuing grand proclamations that redefine the law in fundamental ways, particularly if narrower grounds exist for deciding the case.

How would he fit on the current court?

Judge Garland is a known quantity around the Supreme Court. Over the years, he has sent many law clerks to a vast array of justices at the court—to O’Connor, Kennedy, Roberts, Breyer, Ginsburg and Kagan, among others. If he were confirmed, I am confident that the justices would welcome him with open arms, and that his learning curve would be a lot less steep than even many other individuals who eventually become accomplished justices. He’s been a judge for nearly 19 years and had a very long, very distinguished legal career. Judge Garland would be unusually well positioned to hit the ground running at the court.

Any thoughts on why President Obama chose him?

In making this nomination, President Obama sought to identify someone whose credentials were impeccable and who could win confirmation in the current political environment. He could have selected no one better for this task than Judge Garland. It is also true that in selecting Judge Garland for the court, Obama nominated a genuine intellectual, one who understands how legal opinions impact the lives of ordinary citizens. Now that President Obama has offered a Supreme Court nominee who is so eminently, undeniably qualified for the position, it will be extremely difficult for political opponents to maintain their intransigent approach of denying the nominee a hearing. That approach sounded lamentable enough in the abstract, but it seems positively unsustainable now that Judge Garland has emerged as the nominee.