President Nominates Merrick Garland to Fill Supreme Court Vacancy
Author: David B. Weisenfeld, XpertHR Legal Editor
March 16, 2016
President Obama has nominated DC Circuit Court of Appeals Chief Judge Merrick Garland to fill the vacant Supreme Court seat created by the death of Justice Antonin Scalia. Prior to becoming a judge, Garland was best known for overseeing the domestic terrorism prosecutions of Oklahoma City bomber Timothy McVeigh and Theodore Kazcynski, infamously known as the Unabomber.
But Chief Judge Garland also compiled an extensive record during his 19 years on the DC Circuit, including in employment law. That record indicates rulings that have generally, though not always, favored employees.
For instance, he authored opinions finding that an employee could pursue a False Claims Act retaliation claim in Yesudian v. Howard University and reversing dismissal of a case to allow an individual to show that a job reassignment was, in actuality, a demotion in Czekalski v. Peters.
According to Washington, DC appellate advocate and SCOTUSblog founder Tom Goldstein, Chief Judge Garland's record in a number of close cases has been deferential to agency decision-making, including the National Labor Relations Board.
So what does all of this mean for employers? Perhaps not very much. That's because Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Charles Grassley have vowed not to consider any nominee until after the November presidential election.
The Senate had confirmed Garland in 1997 to the DC Circuit with broad bipartisan support. But barring a sudden change, it is entirely possible that the Senate will not vote on his nomination at all. Either way, the Supreme Court is almost certain to finish the remaining three months of its term with only eight members.