Responding to Steve Vladeck and Charlie Savage on Garland

Thanks to Steve Vladeck for the thoughtful post over at Just Security about his take on Garland’s record on Guantanamo cases and related matters. Steve, like Charlie Savage in the Times, is in one sense far more critical of Garland than I. I say “in one sense” because, before jumping back into the details here, it seems apparent we’re all applying somewhat different metrics here in assessing that record, some I fear more problematic than others.

A fair chunk of Steve’s post is devoted to assessing the likelihood that Garland will do anything to move a host of areas of constitutional/judicial doctrine that have led the courts to avoid reaching the merits in a large swath of national security law (and for that matter, non-national security law) cases in recent decades. As he puts it: “[T]here is nothing in Judge Garland’s track record with respect to Guantánamo (or anything else, for that matter) that leads me to think that he’d be especially aggressive in trying to bolster judicial accountability mechanisms vis-a-vis Executive Branch national security policies. Justice Garland won’t lead the charge to resuscitate Bivens [a cause of action to sue for violations of the U.S. constitution], overrule Pearson or Iqbal [pleading standards], limit Reynolds [state secrets doctrine], scale back Humanitarian Law Project [scope of the federal criminal material support offense], and so on.” As for the Gitmo cases per se, one of Steve’s bottom lines is this: “[I]f the question is whether Judge Garland is going to somehow reinvigorate the Supreme Court’s interest in Guantánamo, color me deeply, deeply skeptical.”

If either of these is the metric – Garland’s interest/ability to be aggressive in shifting these areas of the law and/or “reinvigorate” the Court’s interest in Gitmo – then I would heartily concur with Steve. As I take Steve to agree, most of the doctrinal issues he identifies are decades in the making (Bivens, Reynolds, Turner), and many of them are not at all limited to the national security law context (Bivens, Iqbal, Turner). We can quibble elsewhere about what’s to be done about the material support statute, and whether the problem with Gitmo in recent years has been that the Supreme Court was insufficiently ‘invigorated’ about it, but I actually view all this as quite beside the point I was trying to make in my post. Even if we thought any one justice could single handedly serve to turn the decades-long tide in these areas, I can’t name an appointee to the Supreme Court in the past, say, 25 years or more (and this would have expected a lot of Justice Ginsburg) who I thought would be likely to have an appeals court record that did bespeak a likelihood to aggressively address, for example, the shrinking recognition of Bivens claims. I equally can’t imagine President Obama, who I view as a dyed-in-the-wool constitutional centrist, selecting a nominee who had a record suggesting he/she would. And I certainly can’t imagine the Senate, which at the moment is resisting even meeting with Garland, confirming such a nominee. I think Steve agrees with much/all of this, and I don’t think it’s especially in dispute. So I’m just not sure what’s accomplished by evaluating Garland by a standard no plausible current nominee would meet.

Charlie Savage’s article picks a different metric, reviewing Garland’s D.C. Circuit behavior to determine whether he has “deferred to the government” in cases “pitt[ing] state security powers against individual rights.” In this context, I take Savage to mean “deference” in the sense of how often Garland has sided with the government in national security law cases implicating individual rights. (The article doesn’t talk about ‘deference’ to particular claims of executive expertise, or deference due the executive for some other institutional reason a basis for the decision.) Assuming one agrees in all respects with how Savage reads the record (although more on this in a moment), the strongest conclusion the article reaches is that Garland “has often — though not always — deferred to the government.” On its face, that strikes me as rather the definition of judicial moderate. But that gets us back to what our metric is again, so I’ll set it aside for now.

Beyond this, I worry that Savage draws too much from what elements of the record are available. For instance, Savage seems to count toward Garland’s “often” rulings for the government those decisions in which Garland was applying circuit precedent. (From the article: “Judge Garland was not on the panels that developed the early key precedents [regarding Guantanamo detainees], but he embraced and applied them.” Well, yes. Is the idea that Garland should have generally disregarded and declined to apply those precedents? Which ones? Why? Apart from the likelihood of a judge being overruled en banc for such a habit, I’ve tended to think a decent respect for precedent an otherwise desirable judicial instinct. So before implicitly counting Judge Garland’s decision to “embrace and apply” existing precedent as evidence of a pro-government view, it seems critical to me to probe what the options really were. By the same token, I worry about inferring too much about Garland’s views from his failure to dissent in certain cases – another piece of evidence on which Savage (and Steve) relies. (“Judge Tatel dissented from a panel decision that reversed yet another district court judge’s order to free a detainee. He lamented that the appeals court was giving too much credence to questionable government claims. Judge Garland wrote no equivalent dissent in the cases that came before him.”) To be able to evaluate the meaning of Garland’s non-dissents at all, one would have to look (as I did in my earlier post, and will again in a moment) at the actual cases. More, though, my own, admittedly impressionistic, experience as a clerk (at the appeals court level and again at the Supreme Court) was that the decision to dissent or not in any given case was driven by a huge range of factors – substantive disagreement with the majority, sure, but often even when there was disagreement with the majority, questions of time (always a major factor), anticipated effect, judicial philosophy and strategy, procedural posture, the particular arguments of any dissent on the table, etc. drove a particular judge’s decision to join a dissent or write separately himself. In short, I hesitate deeply to infer substantive conclusions from non-dissents.

This brings us back to the question of the metric itself – how instructive is it in trying to assess a nominee’s judicial philosophy or substantive views to track the government’s win/loss record before a particular judge? True enough, in 3 of the 4 detainee status cases in which Garland wrote the panel opinion, the government won. But as I explain in my previous post, in 2 of those 3 cases (where the legal standard had been previously settled, and the detainees did not contest the central facts), it seems entirely possible, even likely, to me that Judge Garland’s decisions in those cases were right. Doesn’t that count for something?

So where does that leave us? Well, with (1) the merits of Garland’s stated reasoning in his decided cases, and with (2) a metric that we might more fairly apply, as in, whether Garland, in the mold of Ginsburg, Breyer, Sotomayor, and Kagan, is a moderate likely to shift the balance even in some security cases away from where it was/might have been under Justice Scalia?

On the merits, there is the matter of the fourth of those detainee decisions, the Khan case, which I addressed in my last post and would still like to hear what, based on the facts or the law as Garland knew them at the time, he should have done differently. Elsewhere, I strongly disagreed with the panel outcome in Kiyemba II (rejecting the argument that detainees should be entitled to notice before transfer to a third country), which Steve mentions, but for the reasons I noted above, hesitate to draw much from Garland’s decision not to join a dissent from a motion for rehearing en banc. But let’s assume for a minute Garland’s non-dissent from a denial of rehearing en banc should be taken as critical evidence of his views on the merits of that case. If so, I disagree with him. Just as I vigorously disagreed with my beloved former boss, Justice Stevens, in, for example, his dissent in the Texas v. Johnson case (in which a majority of the Court, Scalia included, recognized burning the American flag as a form of First Amendment protected expression). It happens. Which is why something else must matter more in deciding whether to support a Supreme Court nominee – like the quality and persuasiveness of a judge’s legal reasoning, his genuine openness to both sides of a case, and evidence of a commitment to some set of basic constitutional principles like, let’s say, fairness, justice, and humanity.

That’s why Garland’s actual dissent – lengthy, detailed, technical, and eloquent perhaps in a way only a lawyer could love – in Saleh v. Titan Corp. seems so much more instructive. There, Garland writes in favor of the (former) detainees in the kind of case (a plaintiff’s suit for accountability for torture in U.S. custody) in which court after court had concluded (in one doctrinal guise or another) that the issue was too sensitive, too secret, and/or generally too wrapped up in foreign affairs and national security to be susceptible to judicial attention on the merits. Garland doesn’t let the majority on the panel get away with describing the torturous conduct the plaintiffs alleged as mere “abuse,” instead recounting their specific allegations in the kind of unnecessary detail only someone who cares would describe them. And he takes on the panel’s security-related reasons for rejecting the suit in just the kind of exacting detail one would hope, assuring us that has no inherent aversion to the adjudication of individual claims, even when those claims arise in places far away and in our putative national defense. He is, in short, a fine nominee. And based on what I can tell, I suspect he would make an even finer justice.