Supreme Court nominee Garland a moderate who can go hard left or right

President Barack Obama’s nominee for the U.S. Supreme Court, Merrick Garland, has been characterized as a moderate who, if confirmed, would nudge his divided colleagues slightly to the left because he would replace conservative stalwart Antonin Scalia.

But Garland will not necessarily come down with the more liberal justices in every area, particularly on criminal justice issues.

An Associated Press review of Garland’s record on the U.S. Court of Appeals for the District of Columbia Circuit — more than 5,000 rulings and 17,000 pages since 1997 — suggests he is a judge who only rarely, and perhaps reluctantly, has found himself at odds with the government agencies that appear before him.

On the Supreme Court, Garland probably would frustrate the political left and right on alternate days.

He is apt to infuriate conservatives as a champion of union rights, his court record indicates, and, as a believer in public access to government records, to annoy those who defend government secrecy.

He is likely to offend liberals with a readiness to turn back constitutional challenges to criminal prosecutions and perhaps claims of workplace discrimination.

He probably would frustrate partisans on both sides, regardless of which party controls the White House, with steadfast deference to the rules and interpretations of government bureaucrats, whatever their impact.

Summaries of Garland’s decisions on critical issues:

Criminal justice

Many of Garland’s rulings in criminal cases reflect his 12 years as a federal prosecutor or a senior official in the Justice Department’s criminal division.

In dozens of decisions, he upheld lower court rulings that denied defendants’ attempts to suppress evidence because of alleged illegal search and seizure by police. He typically upheld prison sentences imposed by lower courts.

In a 1999 decision, for example, Garland wrote for the court’s majority that police in Washington, D.C., were within their rights to search a car after spotting a 6-inch dagger next to a front seat. They then found a loaded .45-caliber handgun. Defendant Morris Christian’s lawyers contended the search was unjustified.

“First, as appellate judges we do not second-guess a street officer’s assessment about the order in which he should secure potential threats,” Garland wrote. “To the contrary, we must defer to his quick decision as to how to protect himself and others from possible danger.”

Garland also found that U.S. Park Police were correct to have searched Warren Turner’s car trunk after they found a pot-filled “blunt” in the passenger compartment. Cocaine base was found in the trunk, leading to Turner’s conviction on drug distribution charges.

Turner claimed the only evidence officers had before the trunk search was marijuana he had for personal use, but Garland found that “too fine” a line. There was “a ‘fair probability’ that Turner may have hidden additional drugs not necessary for his current consumption in areas out of plain sight, including the trunk of his car,” he wrote.

In a 2000 case, Garland wrote that U.S. Customs agents were not required to get a warrant to install a tracking device in a package shipped from Thailand that contained heroin. The man who opened the package in a taxi in Washington, Abdul Gbemisola, claimed the drug evidence was obtained improperly.

Garland found that no warrant was required. “Adding the tracking device did not require any additional intrusion into anyone’s reasonable expectation of privacy,” he wrote. “One cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger.”

Sometimes, Garland wrote or joined rulings that sided with defendants.

In a 1999 case, Garland wrote the opinion vacating one of Andre Clark’s two gun-related convictions — one for possessing a gun and the second for the ammunition inside it. Garland reasoned that was two convictions for the same offense.

“Indeed, if the statute were read that way, it might just as readily permit 14 charges against Clark, one for the gun and one for each of its 13 bullets,” he wrote.

In a 2006 case, Garland wrote that prosecutors were wrong to pursue more than $63,000 in restitution from a man convicted of making a false statement to the FBI but acquitted of the main money-laundering charge. The ruling overturned a lower court’s decision that Daniel Dorcely of Washington should have to pay restitution despite the acquittal on the money count.

The Supreme Court, Garland wrote, “made clear that a defendant charged with multiple offenses but convicted of only one offense cannot be ordered to pay restitution for losses resulting from the other charged offenses.”

A rare dissent in a criminal justice case came in 2007, when the full appeals court overturned the conviction of a D.C. police detective for accepting an illegal gratuity. The detective, Nelson Valdes, had been targeted in a federal sting operation for accepting money to look up license plates in a police database.

The majority found Valdes had not accepted money for an illegal act, so no crime was committed. Garland disagreed.

“A guy walks into a bar,” his dissent opens, referring to the first meeting between Valdes and a man who described himself as a “federal judge.”

“The detective cannot know who the ‘judge’ really is, or why he wants the information. He cannot know whether the ‘judge’ is a loan shark seeking to find and punish his debtors … nonetheless, in the end he takes the cash — repeatedly — and gives the ‘judge’ the information he seeks,” Garland wrote.

The majority’s decision overturning the conviction, he added, “undermines the prosecution of public corruption.”

Gun cases

Garland’s votes in two gun cases have fueled opposition from gun rights advocates, who have announced they oppose his nomination.

In one, Garland voted to have the entire appeals court review a ruling by a three-judge panel that struck down the ban on handguns in the nation’s capital. Because the entire court declined to review the case, it’s unclear how Garland would have voted on the constitutionality of the gun ban.

The Supreme Court later sided with the three-judge panel, with the 5-4 majority opinion written by Scalia, who died Feb. 13.

In the other case, Garland joined a ruling that upheld a Justice Department rule allowing the federal agency to temporarily save gun buyers’ records. The National Rifle Association had sued, arguing that the Brady Handgun Violence Act required immediate destruction of personal information related to gun purchases.

But the department said it was important to keep some of the information for six months at most to allow audits of the background check system to ensure both accuracy and privacy. A federal district court judge dismissed the NRA’s complaint, and the appeals court affirmed that decision.

Guantanamo detainees

Garland played a central role in deciding cases concerning detainees at the U.S. detention facility at Guantanamo Bay, Cuba, for more than a decade. He largely deferred to the government’s arguments in preventing their access to the courts and their release — with one notable exception.

In 2003, Garland joined a majority opinion ruling that those held at Guantanamo could not access lawyers or challenge in federal court the legality of their detentions. The decision was based on Supreme Court precedent that dictated that U.S. civilian courts lacked jurisdiction to hear challenges brought by detainees who were foreigners not present on U.S. soil.

The Supreme Court would overturn that ruling the following year in Rasul v. Bush, finding that detainees were entitled to challenge their detention in federal court under the habeas corpus statute.

“Initially, Judge Garland was overly cautious in the detainee cases in not seeing the broader, fundamental interest at stake,” said Baher Azmy, legal director of the New York-based nonprofit Center for Constitutional Rights, which has represented numerous detainees before the district appeals court. “The D.C. Circuit has been so consistently reflexively pro-government, and overall Garland has not staked out a particularly helpful position there.”

In June 2006, the Supreme Court ruled that the Bush administration’s planned military commissions at Guantanamo violated U.S. and international law, allowing detainees to pursue their cases in federal courts. Congress and the Bush administration came up with new rules for the military trials later that year.

In 2008, the Supreme Court ruled that foreigners held at Guantanamo had constitutional rights to challenge their detentions in civilian courts. By June of that year, Garland sat on the three-judge panel that was offered the first civilian judicial review of the government’s evidence for holding the detainees.

Garland wrote majority opinion in that case, brought by Huzaifa Parhat, a detainee who was a member of a Chinese Muslim minority group. Parhat should be released, transferred or be given a new military hearing, Garland wrote, because the government’s intelligence was unreliable.

“The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents,” Garland wrote. “We are not persuaded.”

Attorneys for detainees filed a flurry of cases seeking their clients’ release following that ruling, but when government lawyers appealed, the D.C. Circuit typically came down on the side of continued detention.

For example, Garland wrote a majority opinion upholding a lower court’s denial of detainee Shawali Khan’s petition for habeas corpus in 2011, citing “particularly incriminating evidence” that linked Khan to a force associated with al-Qaida and the Taliban.

Three years later, Garland joined a majority opinion upholding a Guantanamo policy that allowed guards to search the genitals of detainees meeting with their lawyers. The opinion said Supreme Court precedent required deference to the government’s view that such policies were “rationally related to security.”

“Garland essentially has been a moderate who applied the law as it existed at the time in a faithful manner,” said David Cole, a law professor at Georgetown. “Some people may not like the law, but that is another story.”

Government regulations

Garland often shows deference to federal agencies but has ruled against the government in some cases involving government regulations.

He was part of a 2010 decision limiting the Food and Drug Administration’s regulation of electronic cigarettes. The appeals panel ruled that the devices, which create a nicotine vapor inhaled by users, should be regulated as tobacco products rather than as drug delivery devices.

“In the absence of an authoritative agency interpretation, I conclude that, unless a product derived from tobacco is marketed for therapeutic purposes, the FDA may regulate it only under the provisions of the Tobacco Control Act,” Garland wrote in a concurring opinion.

He has joined decisions that struck down a Federal Energy Regulatory Commission increase in rental fees for hydropower projects on federal land; vacated a Federal Communications Commission penalty against AT&T related to long-distance charges; and sided with the United Mine Workers, which alleged that the Mine Safety and Health Administration had withdrawn a proposed air quality rule without explanation.

There’s an occasional glimpse of humor in his regulatory writings for the court.

One came in an opinion that sided with the Federal Aviation Administration and the National Transportation Safety Board when the agencies determined a pilot was not medically fit to fly due to a history of problems with consciousness and awareness. Garland wrote that the best the pilot’s own medical expert could say about one incident, which occurred on a Boeing 757, was that the pilot “was acting like a teenager.”

“Had the National Transportation Safety Board (NTSB) believed that expert, it might well have taken away the ‘teenager’s’ jet keys on that ground alone,” he wrote.

In a case involving a transit system providing transportation to professional baseball games, Garland wrote, “This appeal raises the following question: Can Congress constitutionally permit a federally-subsidized transit system to take the residents of Seattle out to the ball game?” The appeals court, citing goals of accommodating disabled fans and restoring affordable service, allowed the transit system to resume services to Seattle Mariners games over the objections of private charter carriers.

Environmental issues

As an appeals judge, Garland has joined in decisions that protected water from boat sewage, families from lead paint and even an endangered toad from land development.

But he has not sided so much with environmentalists as with government regulators. His rulings have backed federal agencies that allowed mines to pollute the air, swans to be killed, landfill to foul wetlands and storage of hazardous waste without permits.

The AP found at least 19 Garland cases since 1997 that clearly leaned either toward or against environmental controls. Of those, 10 favored stronger regulation while nine did the opposite. Only three went against government agencies that were under challenge.

In December 2006, Garland joined a ruling that upheld the Environmental Protection Agency’s crackdown on power plant pollution that forms haze over natural areas.

In November 2012, he again backed an EPA regulation in a ruling that said it was enough that the agency’s legal interpretation “was not plainly erroneous or inconsistent.” This time, though, the agency had decided against air pollution controls for leach fields and other waste sites at gold mines.

The pattern is the same in water pollution cases. In February 2003, Garland joined the court in letting the EPA impose radioactivity limits for drinking water. The rules had been challenged by industry groups.

Then, in November 2011, Garland was part of a ruling that supported the Army Corps of Engineers and generally sided with developers of a Florida shopping mall. The ruling allowed fill to be dumped into wetlands, despite the heated objections of conservationists, though it left a single question open on potential impact to rare eastern indigo snakes.

In April 2003, Garland wrote an opinion that upheld a Fish and Wildlife Service decision. This time, he unequivocally favored wildlife protection, blocking a plan to build a California housing development that threatened rare arroyo southwestern toads.

In December 2006, though, when conservationists tried to stop the killing of male mute swans to manage the Chesapeake Bay population, Garland backed an opinion approving the plan. As usual, he sided with the regulating agency, in this case the Interior Department.

The global view

In several high-profile cases, Garland sided with victims and their families when they sued foreign governments, terrorist groups and others for war and terrorism-related damages.

In one of Garland’s strongest dissents, he sided with Iraqi nationals who sued two U.S. contractors involved in the notorious Abu Ghraib prison scandal. In a 2-1 decision, the federal appeals court in 2009 dismissed the lawsuit, saying the companies had immunity as government contractors.

But Garland disagreed, saying no act of Congress barred the plaintiffs from suing private contractors “who were neither soldiers nor civilian government employees.”

“The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison,” Garland wrote.

Garland said neither Presidents George W. Bush nor Barack Obama suggested the suit would “interfere with the nation’s foreign policy or the Executive’s ability to wage war.”

Four years earlier, Garland wrote an opinion reinstating a suit against al-Qaida and Osama bin Laden filed by Kenyan victims of 1998 U.S. Embassy bombing in Nairobi. The victims sued bin Laden and his terrorist group for orchestrating the bombing that killed 200 people, including 12 Americans.

The district court had dismissed the suit, saying federal courts lacked jurisdiction. Garland disagreed. “The defendants engaged in ‘unabashedly malignant actions directed at (and) felt’ in this country. Bin Laden and al Qaeda should therefore ‘reasonably anticipate being hauled into court’ here by those injured as a result of those actions,” Garland wrote.

In another case, Garland was joined by two other justices, including now-Supreme Court Chief Justice John Roberts, to allow the brother of a slain hostage to sue Libya for his killing.

Peter Kilburn had been an instructor and librarian at American University in Beirut, Lebanon, when he was kidnapped by Hezbollah in 1984. Two years later, in retaliation for a Berlin nightclub bombing that killed two American soldiers, the U.S. bombed Libya — and Libya sought revenge.

A group linked to Libyan strongman Moammar Gadhafi paid Hezbollah $3 million for Kilburn, then murdered Kilburn and left his body along a roadside near Beirut with the bodies of two British hostages.

Kilburn’s brother, Blake, later sued Libya, and the country tried to have the suit dismissed on grounds of sovereign immunity. A federal court denied Libya’s motion and Garland’s court affirmed that ruling. His opinion held that the suit could go forward because of a terrorism exception to the Foreign Sovereign Immunities Act.

Civil rights

Many of the civil rights cases that have come before Garland are about workplace discrimination, though some have had broader implications.

He was part of a 2004 decision that found a transit authority had waived its immunity from federal lawsuits under the Rehabilitation Act by accepting federal money.

The ruling came in a suit filed by an electrician who said he was fired by the Washington Metropolitan Area Transit Authority because of his bipolar disorder. The transit authority countered that he had been fired for insubordination and other behavior.

The authority, created by an interstate compact among Maryland, Virginia and the District of Columbia, argued that it was legally immune to a suit for disability-based discrimination.

The three-judge panel split 2-1, with Garland and Roberts saying the transit authority had waived immunity by accepting the funds. “Congress reasonably can insist that decisions regarding the expenditure of federal funds not be based on irrational discrimination,” Garland wrote.

In 2002, he was part of a panel that reversed a district court that had favored the government in a suit by Catholic prisoners who claimed they were being denied religious rights to drink small amounts of wine during Communion. The panel sent the case back to the lower court to determine whether the prisoners met the threshold of showing a substantial burden on the free exercise of their religion.

In the case of an inmate who sued for sexual harassment at the D.C. jail, Garland ruled to uphold part of her award, but threw out punitive damages. The prisoner said she had been sexually harassed by corrections officers and inmates, including allegations that she was forced by corrections officers to dance naked on a table in front of hundreds of chanting, jeering inmates.

She was awarded $350,000 in compensatory damages in a lower court as well as $5 million in punitive damages. But the punitive damages were reversed because Garland said the district was immune from such damages.

Workers’ rights

When it comes to workers’ rights, many of Garland’s cases originated from the National Labor Relations Board. In a majority of those cases, he sided with labor board rulings, which usually supported pro-labor positions. When Garland dissented from his appeals court colleagues or disagreed with a regulatory ruling, it was usually in support of workers or a union.

His dissent in a 2009 case involving FedEx drivers and the shipping giant is a case in point. Drivers for FedEx’s home-delivery unit filed a complaint with the labor board after the company refused to negotiate with the union they elected to represent them in collective bargaining.

The company argued that the drivers were independent contractors, not employees. As evidence, FedEx showed that home-delivery drivers had the option of selling their routes and hiring helpers.

But the labor board held that the drivers were employees because they were an essential part of FedEx’s home-delivery business and because the company exercised substantial control over them.

In a 2-1 ruling, the appeals court overturned the labor board, finding that FedEx home-delivery drivers were independent contractors because they have “entrepreneurial potential,” can operate multiple routes and sell routes.

Garland disagreed, saying the drivers had little “entrepreneurial opportunity” and noted that FedEx actually put limits on drivers’ ability to sell routes. He said FedEx showed only a rare case or two of “a driver seizing an entrepreneurial opportunity.”

Two years earlier, Garland ruled against a proposed federal rule to increase the driving hours for long-haul truck drivers, citing safety concerns. The consumer group Public Citizen had opposed the Federal Motor Carrier Safety Administration’s regulation to increase truck drivers’ daily driving limits from 10 hours to 11 hours as well as a provision to permit an off-duty period of 34 hours to restart the weekly on-duty limits. It said the FMCSA failed to provide an opportunity to comment on the methodology of the crash risk.

Citing mostly procedural shortcomings, the appeals court granted the group’s petition and vacated the contested portions of the rule. Garland added that the agency’s rules could not be upheld without important aspects of its methodology being fully examined.

In other rulings, Garland:

Joined a 2004 decision upholding a NLRB finding against a company that refused to recognize its workers’ union after moving them to a different location.

Upheld a NLRB finding in favor of a woman who handed out fliers at work after hours that expressed concern over how the company was handling layoffs.

Was part of a 2011 decision that supported an NLRB decision in favor of two employees fired for verbal outbursts against a policy they opposed as unsafe.

Open government

Garland has staked out strong views for keeping government transparent and accountable to the public.

He worried in one of his rare dissents in July 2004 that fellow judges might have given the impression that a Freedom of Information request cannot expose prices paid by federal agencies to contractors. He questioned whether the law really says that and added that, if so, it “should be an exception rather than the rule.”

In September 2009, Garland wrote a powerful defense of the public’s right to know who lobbies Congress. He noted that the Supreme Court long had championed this principle and added that “nothing has transpired in the last half century to suggest that the national interest in the public disclosure of lobbying information is any less vital.”

But he also supported agencies that failed to hand over records. Sometimes, he agreed that they did reasonable searches that simply failed to turn up anything relevant.

In 12 of at least 22 open government cases that came before him since 1997, he has leaned in favor of access, opening the door to release government documents, electronic calendars, audiotapes and other material.

In March 2013, Garland wrote an opinion forcing deeper review of the CIA’s refusal to turn over records on its drone attacks to a civil rights group. Garland said that the intelligence agency could not simply cite national security.

In another case, Garland did not let possible mistakes in records prevent any chance of a full release. In November 2006, he joined in ordering a lower court to reconsider denial of a request for names of people in the U.S. illegally and being held states on behalf of federal authorities. The Justice Department had said releasing such records might embarrass the detainees and unfairly brand misidentified people. But Garland and fellow judges said that risk needed to be formally evaluated — not just asserted.

In November 2005, Garland parted with the court majority in a case involving government scientist Wen Ho Lee, who was largely exonerated of spying accusations in a case that made headlines. Garland urged the court to reconsider a reporter’s effort to protect a confidential source of a leak about Lee, saying the court should be more mindful to the First Amendment and “the importance of a vigorous press.”

In May 2007, Garland voted with the losing side in a ruling in favor of Ohio Republican Rep. John Boehner, who later became speaker of the House. Boehner had sued Rep. Jim McDermott, a Democrat from Washington state, for releasing to reporters an illegal recording of a conference call among Republican politicians. Garland joined with other court dissenters who argued that, though the recording was illegally made, McDermott had not violated the law by accepting it.

But Garland did not always opt for openness in politically charged cases. In October 2001, he joined colleagues in blocking release of thousands of pages of Internal Revenue Service documents. A conservative nonprofit law firm wanted the records to examine claims that the agency had unfairly targeted conservative groups for audits.

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Associated Press writers Garance Burke, Gene Johnson, Michael Graczyk and Larry Neumeister contributed to this story along with AP news researcher Rhonda Shafner.

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The AP National Investigative Team can be reached at investigate@ap.org