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Supreme Court pick Garland's track record less friendly to business

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Judge Merrick Garland's tendency to defer to regulatory agencies makes his possible appointment to the U.S. Supreme Court problematic for employers, say legal experts.

Given Republican opposition to President Barack Obama's nomination, it is not certain whether Judge Garland, who was appointed as chief judge for the U.S. Court of Appeals for the D.C. Circuit by President Bill Clinton in 1997, will succeed Associate Justice Antonin Scalia, who died last month, on the high court.

But if he does reach the Supreme Court, his judicial record is troubling, say legal experts who defend business interests. “Based on his track record, I would say that employers should have concerns as to whether he's likely to be as sympathetic as they would like,” said Steven Bernstein, regional managing partner for Fisher & Phillips L.L.P. in Tampa, Florida.

Mr. Bernstein said of Judge Garland's 22 decisions where the National Labor Relations Board was a party, 18 favored the NLRB and of the four others, two favored the union rather than the employer, said Mr. Bernstein. That is a “pretty big percentage when compared against the backdrop of the cases issued by the court during that period of time,” said Mr. Bernstein.

“When you look at his track record, he has consistently been a supporter of executive action from the 'fourth branch' of government, the regulatory agencies, and he is consistently willing to defer to their judgment,” said Michael Lotito, co-chair of Littler Mendelson P.C.'s Workplace Policy Institute in San Francisco.

“We've had a flood of new rules and regulations from one government agency after another,” said Mr. Lotito. “The concern is that he's going to be deferential to their rulemaking,” which has “enormous implications from a check-and-balance standpoint,” he said.

Judge Garland's ascension to the Supreme Court would mean “the president's agenda over the past two terms is liable to become much more cemented into the fabric” of American law. “That's a big issue,” Mr. Lotito said.

Another concern is the issue of who has standing to file class action litigation, said Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago. His views in this area “have been somewhat liberal and expansive … and I think employers likewise believe when it comes to class action issues he may well be in allegiance with the more liberal wing of the Supreme Court.”

He would replace “someone who employers could count on in terms of a conservative view of almost all issues involving the workplace,” said Mr. Maatman.