Vietnam was escalating. The Rev. Martin Luther King Jr. had been slain only a year before. And at Niles West High School outside Chicago, a senior who was president of the student council took on an issue of pressing concern to the teenagers of this suburban slice of the North Shore: the right to wear shorts to the unairconditioned school during final exams.
It was an era of student strikes and sit-ins, but the student council president, Merrick Garland, chose a different course. He tried to defuse the brewing conflict, turning to hard evidence to make the case. “Who would have thunk to seek out help from a psychologist?” recalled Donald Silvert, a fellow 1969-1970 student council officer.
But that’s what Garland did, enlisting a psychologist to write a letter to the principal, assuring him that there was no research showing that wearing shorts rendered high schoolers any less studious.
The strategy succeeded.
At 17, his handling of the dress-code controversy — working for change from within the system, taking the views of others into account — displayed qualities that have been visible throughout the life of the 63-year-old appellate judge whom President Obama has nominated for the U.S. Supreme Court.
The vacancy on the court, created by the death of Justice Antonin Scalia, has become a focal point of the nation’s bitterly divided politics, with Senate Republicans refusing to consider anyone Obama had chosen. An examination of Garland’s coming of age and his professional life, based on interviews with more than three dozen relatives, friends, mentors and colleagues, reveals a style and intellectual disposition that offer opponents to his nomination few rough edges to exploit.
Garland is a disciplined rule follower — methodical and meticulous in his adherence to process. He would never dream of accelerating at a yellow light, according to one of his closest friends since fifth grade, Earl Steinberg, and invariably seeks out multiple doctors’ opinions when he or anyone in his family has a medical problem. “It’s check, double-check, triple-check,” Steinberg said.
And yet this understated, systematic style — that of technical mastery, not poetry — is blended with a prodigious work ethic and keen social intelligence to potent effect.
Ever since his youth, Garland has drawn the support of people in a position to further his ambitions. In the high school election for student council president, a classmate stopped collecting petitions to run against him, sensing that the faculty adviser was grooming Garland to win. When Garland worked two college summers back home for the Democratic congressional campaigns of Abner Mikva, writing his press releases and cue cards for his stump speeches, the candidate’s wife made no secret that she hoped Garland would marry one of their daughters. As a third-year law student, Garland was eager to edit a Harvard Law Review article by Supreme Court Justice William J. Brennan Jr. — and impressed the justice enough to secure a clerkship with him.
Asked to recall instances in which Garland has suffered disappointments — or temporarily veered off course — people close to him hesitate, stumped. The first instance anyone cites came in 1995, when President Bill Clinton tapped him for the U.S. Court of Appeals for the D.C. Circuit but the nomination was blocked in the Senate for two years. The experience was hard on him, friends said. (Clinton eventually renominated him.) Later, Garland was a finalist for the first two Supreme Court openings of Obama’s tenure but wasn’t chosen and thought his time had passed.
“If there is someone who has his highest dreams fulfilled unexpectedly, it has to be Merrick Garland,” said Mikva, now 90, a friend and mentor, who went on to become chief judge of the D.C. Circuit. It was Mikva’s departure in the mid-1990s to be Clinton’s White House counsel that created the court vacancy that Garland filled.
“I think Merrick must have thought about being on the Supreme Court as long as he’s been old enough to think about it,” Mikva said. Still, “one of the things about Merrick is, he has passions, but he does not use them to get aroused.”
Merrick Brian Garland grew up in a less-fancy part of Lincolnwood, the first child of a couple who had met at a Jewish dance. Cyril and Shirley Garland had both gone to the University of Chicago — he to study business administration, she for social work. The family lived in a brick bi-level, with a bedroom for the only son and another that his two younger sisters shared.
Jill Roter, about 18 months younger than her brother, remembers their father working 12 or 14 hours a day, running a tiny advertising business from an office on their home’s lower level. He designed fliers promoting store sales, took them to a local print shop and then “had little address machines. . . . Merrick and I would sit and help,” Roter recalled. Their father was “not making a lot of money, and working all those hours,” she said.
Childhood friends remember Garland’s father, who died in 2000, as gentle, nonjudgmental and affectionate. Friends describe his mother as “brilliant.” She was on the local school board — a post that required her to run in nonpartisan elections.
Garland was an achiever early: enrolled in an experimental class for advanced students in fifth grade, president of the Lincoln Hall Junior High student body in eighth grade. By high school at Niles West, he played the challenging lead role in “J.B.,” a play, written in free verse by the poet Archibald MacLeish, based on the biblical story of Job.
As the student council’s vice president his junior year, he helped organize a mock election; it was the fall of 1968, three months after riots at the Democratic National Convention in downtown Chicago, so the principal was wary, recalled Barry Rosen, another council officer. “Merrick was very cognizant of all this, to make sure this was organized, to make sure all views would be represented,” said Rosen, now a lawyer in Chicago.
Close to graduation, Garland suggested to Rosen and Steinberg that, as student leaders, they take to the senior prom three South American exchange students who might otherwise not be invited. “We triple-dated. I drove,” Rosen said.
Garland and Steinberg both got into Harvard, and they decided to room together in a four-person suite on Harvard Yard. Garland was planning to become a doctor, and he arrived in Cambridge with a large scholarship from G.D. Searle, a pharmaceutical company. It was inside their suite, second semester of their freshman year, that Garland began worrying aloud that he might not have chosen the right path.
As Garland saw it, medicine was a way to help people individually, Steinberg recalls. “What eventually drew him more to the social sciences,” Steinberg said, “was the prospect of having an . . . impact on many people, as opposed to one by one.”
Garland, ever the rule follower, knew that he needed to notify the sponsor of the scholarship about his shift in plans, and he feared losing the aid. Searle allowed him to keep it.
By his first winter in college, he was again working within the system. He was elected the sole freshman representative to Harvard’s Committee on Houses and Undergraduate Life. The campus was being roiled by disputes over coeducation, following Radcliffe’s recent merger with Harvard College.
Jamie Gorelick, who would later become Garland’s boss at the Justice Department, was a junior on the committee and first remembers him from a fevered debate over whether to change a system that had given tickets to Harvard’s football games only to male students, with women able to go only as men’s dates. Some administrators contended that the proposed change would harm the university’s future fundraising. Gorelick was outspoken that the system was unfair, and Garland, the freshman, agreed with her.
That spring, Garland was accepted into the small social-studies major, a “place to be if you wanted to be on the inside with some” of Harvard’s social science luminaries, said classmate David Johnson. It was rigorous and non-ideological. Every sophomore, Johnson said, “had to read the collective works of some of the great philosophers — Durkheim, Freud, Marx, Max Weber — and sort of synthesize their worldview from different perspectives.”
For his honors thesis as a senior, Garland chose to write about industrial mergers in Britain in the 1960s. His thesis adviser, a young professor in the government department named Peter Gourevitch, said the topic fit within debate circulating at the time about the role of government in the economy. The 235-page thesis is akin to the judicial opinions Garland would produce decades later, evaluating competing interpretations of the forces that led to automobile and computer industry mergers, and then laying out which interpretation he found to carry the greatest weight.
When he finished, Gourevitch, now an emeritus professor at the University of California at San Diego, did something he never did for any other Harvard student: He took Garland to lunch — at the No Name Restaurant, a fish place on Boston’s waterfront — to celebrate his achievement.
Susan Estrich remembers meeting Garland at a picnic for the 20 second-year law students whose grades had won them a spot on the Harvard Law Review. “We all sort of eyed each other,” said Estrich, a University of Southern California law professor who also has worked in Democratic politics. “We were all smart, but some people were . . . more cosmopolitan. He had a sense of being a winner.”
The next spring, Estrich beat Garland in a five-way competition to become the law review’s president. He became one of the law review’s four article editors, splitting up the hundreds of articles that arrived for consideration, recalls Kate Stith, now a Yale law professor. The article Brennan submitted was on rights granted by state constitutions that, in some cases, exceed those under the U.S. Constitution. Garland was eager to edit it, Stith and others recalled. The article ran in the law review’s January 1977 issue. By the time Garland graduated that spring, Brennan, who typically chose one Harvard law student as a Supreme Court clerk each year, had selected him.
Garland not only clerked for the liberal lion Brennan but also for another luminary: Judge Henry J. Friendly, a conservative on the New York-based Court of Appeals for the 2nd Circuit. The judge drafted opinions by working at his large desk with his secretary taking stenography and his two clerks in front of him, expected to chime in if they had an idea.
After his clerkships, Garland became a special assistant to Attorney General Benjamin Civiletti. When Ronald Reagan was elected president, Garland was three years out of school and had not yet practiced law. He joined the D.C. firm Arnold & Porter, focusing on antitrust work. He helped to defend electrical contractors on trial in Montana for alleged bid-rigging; they were acquitted.
Four years after becoming a partner, Garland left in 1989 for a stint in the office of U.S. Attorney Jay Stephens. According to a friend at the time, Garland was allowed to bypass new prosecutors’ petty-crime rotation and jump into larger drug and corruption cases.
Three years later, he went back to his old law firm — temporarily.
Garland’s return to the Justice Department, as principal associate deputy attorney general, opened one of the defining chapters of his life, leading the investigation of the 1995 Oklahoma City bombing. Watching on television as rescuers removed bodies from the wreckage of the federal building in the hours after the explosion, Garland asked Attorney General Janet Reno to dispatch him to take charge of the inquiry into a crime scene covering several city blocks.
A half-dozen people who watched him work there recall that he consoled victims and families, and pushed a large law enforcement community to begin a disciplined inquiry that amassed evidence meticulously while ensuring that the bombing suspects were arraigned, questioned and prosecuted according to a strict interpretation of the criminal code.
His lesser-known role in another case perhaps best illustrates the adherence to process that has characterized him since he was a teenager: the troubled investigation of the 1996 Atlanta Olympics bombing. An internal Justice Department report examined complaints surrounding the FBI’s interview of security guard Richard Jewell, whose name was leaked as a potential suspect. And it found that Garland, who was not in charge of the case, repeatedly urged that Jewell be given his Miranda rights and complained to his bosses after learning that FBI agents had used a ruse, telling Jewell erroneously that the interview was being taped for training purposes.
Since Garland arrived on the D.C. Circuit in 1997, the qualities he first evinced as a youngster and the lessons he absorbed along the way have been much in evidence.
As he learned as a clerk for Friendly, Garland involves his own clerks in a meticulous polishing of an opinion. His custom is to ask the clerk assigned to the case to be beside him at his standing desk while he reviews the opinion, word by word. Once they finish, the judge then summons a second clerk — one with no role in drafting the opinion — to stand alongside him for a final reading. “It could take hours,” recalled Karen Dunn, a clerk a decade ago who is a lawyer in the District.
And, as he did decades ago with his wary high school principal, Garland has a facility for forging consensus among the 11-member D.C. Circuit.
Garland employs a mastery of the law and a strategy of defining contentious issues in ways that limit the scope of debate, according to interviews with four clerks and two fellow judges, including Judge Laurence Silberman, a noted conservative appointed by Reagan.
Garland’s ability to achieve consensus was apparent in a case last year, Wagner v. Federal Election Commission, a challenge to a federal ban on campaign donations from government contractors. The plaintiff’s lawyer, Alan B. Morrison, contended that the law violated the constitutional rights of individual contractors.
The opinion Garland wrote, however, upheld the contractors ban. It emphasized the narrow nature of the plaintiff’s claim and the statute’s limited reach. His opinion used the word “narrow” 11 times. Morrison, who expected his argument to be attractive to judges on both the left and the right, was stunned.
Garland’s opinion was signed by every other active judge on the appellate court.
Alice Crites contributed to this report.