(This story was updated at 5:30 p.m. ET.)
President Barack Obama has nominated Merrick Garland, chief justice of the U.S. Court of Appeals for the District of Columbia, to the U.S. Supreme Court.
The pick ends weeks of speculation, but marks the beginning of what likely will be months of fighting over whether the Senate should confirm the 63-year-old judge for the seat. Senate Majority Leader Mitch McConnell has pledged not to confirm a new justice before the next president takes office—a position he reiterated after Garland's nomination was announced Wednesday.
Obama on Wednesday praised Garland, saying he “brings to his work a spirit of decency, modesty, integrity, even-handedness and excellency.” He said he's earned respect from those on both sides of the aisle. He was confirmed in his current position by a majority of Senate Democrats and Republicans.
Lawmakers will almost certainly spend coming months digging through Garland's judicial record to see where he stands politically. As chief justice of the U.S. Court of Appeals in Washington, Garland, who is viewed as moderate, has been involved in a number of healthcare-related cases, sometimes siding with hospitals and other times with HHS.
- Garland was part of a three-judge panel in May that partially sided with hospitals in a case over Medicare outlier payments. In that case, 186 hospitals alleged that Medicare underpaid them by more than $3 billion in outlier payments. Outlier payments are extra payments made to hospitals when the estimated cost of treating a patient exceeds the standard Medicare payment.
The three-judge panel ruled that HHS' secretary needed to better explain her calculation methods for reaching those payment amounts. The panel also, however, rejected the hospitals' arguments that the thresholds were “arbitrary and capricious” and led to underpayments in 2005 and 2006 as well.
- Also, in December, Garland was part of a three-judge panel that sided with HHS in a case brought by Fayetteville City Hospital in Arkansas, which was reportedly closed by Washington Regional Medical Center in 2012. In that case, the hospital challenged HHS's method to calculate reimbursement for services the hospital provided amid a changing payment model for psychiatric hospitals. The opinion in the case, written by a different judge, called HHS' interpretation “reasonable.”
- A few years earlier, in 2011, Garland was part of a three-judge panel that sided with Beverly Hospital in Massachusetts after it challenged reimbursements it received from HHS for services it provided to low-income beneficiaries. The hospital and judges took issue with a 2008 administrative appeal in which the HHS Secretary ruled that a Medicare beneficiary enrolled in Medicare Part C still qualified as a person entitled to benefits under Medicare Part A. That decision led to Beverly being undercompensated, the opinion, written by a different judge, said.
- In 2009, more than 100 inpatient hospitals argued that HHS interpreted the Medicare reimbursement statute in a way that shorted them millions of dollars. Garland was part of a three-judge panel that mostly sided with HHS in the case.
Erwin Chemerinsky, a professor at University of California Irvine School of Law, said Garland often sides with government agencies.
Garland's court has also dealt with several challenges to the Affordable Care Act. Garland hasn't been as closely involved in those cases as the ones above, but he has played a role:
- A majority of judges on Garland's court recently denied a petition for rehearing in a case now before the U.S. Supreme Court over the ACA's contraception mandate. In that case, a three-judge panel of the court that did not include Garland sided with the government, saying religious not-for-profits must notify their insurers or third-party administrators if they want to opt out of the ACA's requirement to provide birth control coverage for employees so other coverage can be arranged. The not-for-profits had argued they shouldn't have to play any part in helping employees get birth control. The religious not-for-profit Priests for Life then asked the court to rehear the matter before a full panel of judges. The vote is not broken down by judge, but a majority of judges on the court denied the request for a re-hearing.
- Garland was also head of the court when a majority of its judges decided in September 2014 to re-hear Halbig v. Burwell, a case in which a three-judge panel of the court that did not include Garland initially ruled against the government. The panel decided that insurance premium subsidies under the ACA should not be offered to Americans in states without their own exchanges. The court never actually re-heard the case, however, instead deferring to the Supreme Court's decision in King v. Burwell last year. In King v. Burwell, the nation's high court upheld the premium subsidies for Americans in all states.
As in the contraception case, Garland's vote on the matter of whether to re-hear the Halbig case is unknown. But Josh Blackman, an associate professor of law at South Texas College of Law, said it's likely Garland was one of the judges in the majority who voted to re-hear the case.
Many have called Garland a moderate, in general, but Blackman, who focuses much of his work on the Supreme Court, said Garland seems left-of-center.
But Stephen Wermiel, a constitutional law professor at American University who is also an expert on the Supreme Court, said Garland is a moderate in many ways, though he's tough on criminal-procedure issues.
“He's not somebody that conservatives can paint as a liberal activist judge,” Wermiel said. He called Garland's experience, intelligence and credentials “unassailable.”
Chemerinsky also said Garland tends to be somewhat conservative on criminal issues and a little less conservative on issues of individual liberty.
Obama said Garland's judicial record shows his “fundamental temperament that all views deserve a fair hearing.”
McConnell, however, showed no signs of budging on the confirmation Wednesday.
“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different,” McConnell said on the Senate floor. “Either way, our view is this: Give the people a voice in filling this vacancy.”
Wermiel said it's unlikely the Senate will change its mind about confirming an Obama pick, even though the pick is Garland.
“Even if he's a moderate, they want a conservative,” Wermiel said.
At least one Republican, however, suggested Wednesday that the Senate's position could change if a Democrat is elected president in November.
“If the election doesn't go the way Republicans want it, there will be a lot of people open to that, I'm sure,” said Sen. Jeff Flake (R-Ariz.), who sits on the Judiciary Committee, of confirming Obama's pick after November, according to the Washington Post.
Wermiel said that's certainly possible, especially if Democrats win the Senate and the White House in November. Still, he said, even in that scenario, certain lawmakers, such as presidential candidate Sen. Ted Cruz, might filibuster.
“Right now you have this uniform wall of Republicans all saying the same thing but not necessarily for the same reasons,” Wermiel said.
Garland also previously worked in the Justice Department, was a federal prosecutor in President George H.W. Bush's administration, and before that was a partner in a law firm. He clerked for Supreme Court Justice William Brennan, who was appointed by President Dwight D. Eisenhower. He's originally from Illinois and attended Harvard Law School.
Garland was chosen to succeed Justice Antonin Scalia, a conservative who died in February.
