The Judicial Crisis Network (JCN) is now smearing Justice Merrick Garland of the D.C. Circuit Court by claiming that his 2007 vote to rehear a case on D.C.'s handgun ban meant that he is not “moderate” and that “he would vote to reverse one of Justice Scalia's most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.”
In fact, in crucial context omitted by JCN's attack, Garland was joined in his vote by the very conservative Judge A. Raymond Randolph. JCN also failed to note that voting to rehear a case does not mean that a judge is committing to deciding it one way or the other.
JCN is reportedly spending “seven figure[s]” to try to block President Obama's nomination to fill the vacancy on the Supreme Court created by Justice Antonin Scalia's death. The group has already attacked two of the judges on Obama's shortlist, distorting the record of Sri Srinivasan and criticizing Jane Kelly for her past work as a lawyer.
Writing at National Review, JCN chief counsel Carrie Severino is now attacking Garland, a long-serving and widely praised D.C. Circuit Court judge confirmed in 1997, for his role in a request to reconsider Parker v. District of Columbia, a case that challenged Washington's ban on handgun ownership. According to the Houston Chronicle, “Garland is regarded by legal scholars as a moderate, and he is well respected by both Democrats and Republicans in Washington.”
Parker was decided on March 9, 2007. In a 2-1 panel decision of three judges -- that Garland did not participate in -- the D.C. Circuit reversed a lower court's decision upholding the ban, finding that D.C.'s law violated the Second Amendment.
Following the decision, the D.C. Circuit voted on whether to rehear the case en banc, a procedure where the full court can reconsider the case and decide differently. In a 6-4 vote, the court declined to rehear the case en banc. Garland was one of four justices who voted to rehear. The question in Parker about the constitutionality of D.C.'s handgun ban was finally resolved in the landmark 2008 decision District of Columbia v. Heller, which overturned D.C.'s ban.
In a March 11 post, Severino attacked Garland for his en banc vote, claiming that it has special significance because he “voted with Judge David Tatel, one of the most liberal judges on that court.” Severino concluded that Garland's vote was evidence he would reverse Heller and that it indicated that Garland “has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them.”
Conspicuously, Severino does not mention that Tatel and Garland were joined, along with one other circuit judge, by George H.W. Bush appointee Justice A. Raymond Randolph:
Randolph is well-known for his conservative views. In fact, in 2007, JCN -- which was known as the Judicial Confirmation Network during the Bush administration -- promoted an event where Randolph hosted ultra-conservative jurist Robert Bork:
Randolph was a character witness for Bork's contentious and ultimately rejected nomination to the Supreme Court in 1987. JCN's promotion of Randolph came just a few months after he had joined Garland in voting to rehear the Parker case. According to The New York Times' Linda Greenhouse, Randolph “is one of the most outspoken and agenda-driven conservatives on the entire federal bench.”
But under JCN's logic, Randolph would be branded as a threat to the Second Amendment because he voted to rehear Parker.
Severino offered a secondary criticism of Garland in her National Review post, attacking the 2000 D.C. Circuit decision National Rifle Association v. Reno, a ruling he also joined. The JCN chief counsel did not note that the conservative-leaning Supreme Court subsequently declined to disturb the decision.
In Reno, the NRA claimed that the way the FBI's National Instant Criminal Background Check System (NICS) for gun purchases temporarily retained data of gun owners violated a federal prohibition on creating a registry of gun owners.
On appeal, the NRA lost the decision, 2-1, with Garland joining Judge David S. Tatel's majority opinion, which ruled: “Finding nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes, we affirm the district court's dismissal of the complaint.”
Severino attempted to scandalize the ruling, writing, “Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement” and that Garland is “willing to uphold executive actions that violate the rights of gun owners.”
In fact, the majority opinion Garland joined found the regulation to be legally permissible, upholding a federal district court opinion that also found the regulation to be lawful. And when the NRA appealed the decision to the Supreme Court, the conservative-leaning court declined to hear the case. The regulation that Severino calls “illegal” was never found to be illegal; instead it was eventually changed by John Ashcroft when he became George W. Bush's attorney general.