President Barack Obama's nomination of Merrick Garland to the U.S. Supreme Court marks the beginning of what likely will be months of fighting over whether the Senate should confirm or even consider the 63-year-old appellate judge for the seat vacated by the late Antonin Scalia.
Senate Majority Leader Mitch McConnell has pledged not to confirm a new justice before the next president takes office—a position he reiterated after Obama announced he would nominate Garland, chief justice of the U.S. Court of Appeals for the District of Columbia Circuit.
“I think it's highly unlikely (the Senate) will hold hearings,” said Stephen Wermiel, a constitutional law professor at American University who is an expert on the Supreme Court. “Their view is, 'If we start the process then it's harder to stop it.' ”
But lawmakers, media and advocacy organizations will likely spend coming months digging through Garland's judicial record to see where he stands politically.
Over the years, Garland has been involved in a number of healthcare-related cases, sometimes siding with hospitals and other times with HHS.
In May, he was part of a three-judge panel that partially sided with 186 hospitals in a case over Medicare outlier payments, which are made to hospitals when the estimated cost of treating a patient exceeds the standard Medicare payment. The panel ruled that HHS needed to better explain the payment methodology but rejected some of the hospitals' other arguments.
In December, however, Garland was part of a three-judge panel that sided with HHS in a case brought by Fayetteville (Ark.) City Hospital (since closed), which challenged Medicare's method of calculating reimbursement amid a changing payment model for psychiatric hospitals.
Garland's court has dealt with several challenges to the Affordable Care Act. He hasn't been as closely involved in those cases as those previously mentioned, but he has played a role in two big ACA cases—one about contraception and the other concerning premium subsidies. The vote breakdowns in those cases are not public, but in each case a majority of the judges sided with the government when it came to deciding on whether to rehear the cases.
Erwin Chemerinsky, a professor at the University of California Irvine School of Law, said Garland often sides with government agencies.
Garland is widely regarded by legal experts as a moderate. “He's not somebody that conservatives can paint as a liberal activist judge,” Wermiel said.
But that doesn't mean Garland will be embraced by conservatives. Josh Blackman, an associate professor of law at South Texas College of Law, said Garland seems left of center. Blackman, an adjunct scholar with the libertarian Cato Institute, also wrote in his blog that the nomination raises red flags because Garland has penned few notable opinions on matters of constitutional controversy.
Chemerinsky said Garland tends to be somewhat conservative on criminal issues and a little less conservative on issues of individual liberty.
Garland previously held senior positions in the U.S. Justice Department and was a federal prosecutor in President George H.W. Bush's administration.
He clerked for Supreme Court Justice William Brennan, who was appointed by President Dwight D. Eisenhower, a Republican. He is originally from Illinois and attended Harvard Law School.
Even though several Republican lawmakers have publicly praised Garland in the past, it appears unlikely the Senate will change course on confirming an Obama pick, experts say.
Republican senators might soften their stance during a lame duck session if Democrats win the White House and the Senate in November. But even in that scenario, certain lawmakers, such as presidential candidate Sen. Ted Cruz, might filibuster, Wermiel said. “Right now, you have this uniform wall of Republicans all saying the same thing but not necessarily for the same reasons,” he said.
