False characterizations of Supreme Court nominee Merrick Garland's judicial record on gun-related cases pushed by discredited right-wing group Judicial Crisis Network (JCN) were echoed by conservative media and the National Rifle Association following Garland's nomination. These smears ultimately formed the basis for the continued refusal of Senate Majority Leader Mitch McConnell (R-KY) to allow a hearing.
MARCH 11: Judicial Crisis Network Debuts Attack That Misstates Garland's Record On Two D.C. Circuit Gun Cases
Judicial Crisis Network Falsehood: Garland's Vote To Rehear A 2007 Case On D.C.'s Handgun Ban Reveals A “Very Liberal View On Gun Rights.” In a March 11 post at National Review's Bench Memos legal blog, Judicial Crisis Network chief counsel and frequent National Review contributor Carrie Severino wrote that a vote Garland cast to re-hear Parker v. District of Columbia, a 2007 case that struck down Washington, D.C.'s handgun ban, disproved Garland's reputation as a “moderate,” revealing his “very liberal view on gun rights” because he had voted alongside Judge David Tatel, “one of the most liberal judges on the court.” She added his vote signaled a desire to overturn Justice Scalia's opinion in the Second Amendment case D.C. v. Heller, which is current precedent for the constitutional scope of gun restrictions:
As the White House prepares to choose a nominee for the Supreme Court, they are continuing to suggest that they might nominate a supposed “moderate.”
But Garland has a long record, and, among other things, it leads to the conclusion 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.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one's own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the "[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights" in a previous case. Had Garland and Tatel won that vote, there's a good chance that the Supreme Court wouldn't have had a chance to protect the individual right to bear arms for several more years.
First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he's willing to uphold executive actions that violate the rights of gun owners. That's not so moderate, is it? [National Review, Bench Memos, 3/11/16]
JCN Falsehood: Garland Upheld An “Illegal Clinton-Era Regulation” Creating A Gun Registry Requirement In NRA v. Reno. Also in her March 11 post to National Review's Bench Memos legal blog, Severino argued that Garland had voted to “uphold an illegal Clinton-era regulation” by joining the majority decision in the 2000 case National Rifle Association v. Reno, and that Garland is “willing to uphold executive actions that violate the rights of gun owners”:
Moreover, in the case mentioned earlier, Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement. Congress prohibited federal gun registration mandates back in 1968, but as Kopel explained, the Clinton Administration had been “retaining for six months the records of lawful gun buyers from the National Instant Check System.” By storing these records, the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background check records for law abiding citizens.
Garland thought all of these regulations were legal, which tells us two things. First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he's willing to uphold executive actions that violate the rights of gun owners. That's not so moderate, is it? [National Review, Bench Memos, 3/11/16]
THE FACTS: JCN Distorted Garland's Role In Parker And Reno To Dishonestly Characterize His Record As Radical On Guns
An Appellate Panel Of The D.C. Circuit Broke With Supreme Court Precedent In 2007 To Strike Down D.C. Handgun Ban. In March 2007, a panel of three judges on the U.S. Court of Appeals for the D.C. Circuit -- not including Garland -- issued a decision in Parker v. District of Columbia, overturning a lower court case to rule that D.C.'s ban on handgun ownership violated the Second Amendment. After the decision, Garland was one of four judges who voted to rehear the unprecedented case en banc, a procedure in which the full court can reconsider the case and decide differently. In a 6-4 decision, the court declined to rehear the case en banc. [Media Matters, 3/14/16]
Legal Experts Explained How JCN Mischaracterized What Garland's Vote To Rehear Parker En Banc Meant. Media Matters interviewed legal scholars who explained that Garland's vote to rehear the case is not evidence that he wished to reverse the D.C. Circuit's ruling, which invalidated D.C.'s handgun ban. As University of Pennsylvania Law School professor Steve Burbank explained, “A vote to rehear a case en banc by a judge who was not a member of the original panel does not provide evidence of that judge's views on the merits. It usually indicates that in that judge's opinion there are aspects of the case that are sufficiently important or sufficiently difficult to warrant consideration by the full court”:
Legal scholars stress to Media Matters that a rehearing vote should not be taken as evidence of how a judge would rule in the case.
“A vote to rehear a case can be based only on the importance of the issue and the need to have the full court address it or it can be because the issue is a complicated and confusing one that demands the clarity provided by a discussion of the full court of appeals,” said Andrew Bradt, assistant professor of law at the University of California, Berkeley, School of Law. “It doesn't at all indicate a pre-judgement that the panel's decision was wrong.”
“A vote to rehear a case en banc by a judge who was not a member of the original panel does not provide evidence of that judge's views on the merits,” said Steve Burbank, a law professor at the University of Pennsylvania Law School. “It usually indicates that in that judge's opinion there are aspects of the case that are sufficiently important or sufficiently difficult to warrant consideration by the full court.”
He added that, "en banc review is a necessary safeguard to ensure that panels speak for the court as a whole."
Sherman L. Cohn, a professor of law at the Georgetown University Law Center and a former D.C Circuit law clerk, agreed.
“A vote to re-hear, or not to re-hear, by a judge who did not sit on the original panel, is a dangerous way to predict how that judge would vote,” Cohn said via email. “Sometimes the vote to rehear is because the judge does not believe that the original, panel decision was strong enough or clear enough - and not because the judge disagrees. When I was a law clerk on that very court (1957-58), I saw that happen.”
Marin K. Levy, an associate professor at the Duke University Law School, has written on the issue several times. She said assumptions based on a rehearing vote are often incorrect.
“A judge's vote to rehear a case en banc can indicate many things apart from a desire to have the case decided differently on the merits,” she said. “For example, a judge might think that the issue is sufficiently important that it should be decided by the entire active court and not simply a three-judge panel. Or a judge might think the outcome was the correct one but that the reasoning to reach the result was flawed.”
She later added, “There are many reasons why one would want to rehear a case en banc and so a judge's vote in this context should not be taken to necessarily mean he would have voted for a particular outcome.”
Dan Farber, a law professor at the University of California, Berkeley, School of Law said, “All it really means is that he thought the case deserved consideration by the entire court, not just the three judges who heard it initially. He might have disagreed with it, or he may have thought that it conflicted with other precedents or rulings from other courts, or just that it was a very important issue.”
He added, “If they ever had a hearing, senators could ask him about this!” [Media Matters, 3/17/16]
Conservative Judge A. Raymond Randolph Also Voted To Rehear The Case. The four votes to rehear the Parker case also included one cast by Judge A. Raymond Randolph, a George H.W. Bush appointee to the D.C. Circuit and a well-known conservative. In fact, JCN -- then still operating under the name Judicial Confirmation Network -- promoted a discussion between Randolph and ultra-conservative jurist Robert Bork months after Randolph joined Garland in voting to rehear Parker. [Media Matters, 3/14/16]
NY Times' Greenhouse Described Randolph As “One Of The Most Outspoken And Agenda-Driven Conservatives On The Entire Federal Bench.” In a 2014 opinion piece discussing a legal challenge to the Affordable Care Act, New York Times contributor Linda Greenhouse, whose work focuses on the Supreme Court and law, wrote of Judge Randolph:
Judge Randolph is one of the most outspoken and agenda-driven conservatives on the entire federal bench. In a speech to the far-right Heritage Foundation in 2010, for example, he denounced the Supreme Court for having granted habeas corpus rights to the Guantánamo detainees and compared the justices to Tom and Daisy Buchanan in “The Great Gatsby,” “careless people who smashed things up” and “let other people clean up the mess they made.” [The New York Times, 8/20/14]
Majority Opinion In The Reno Case, Which Garland Joined, Affirmed A Lower Court Ruling That The Regulation Was Lawful. The decision in the 2000 D.C. Circuit case National Rifle Association v. Reno found that, while the FBI's National Instant Criminal Background Check System (NICS) for gun purchases did temporarily retain data of gun owners for the purpose of audits, the practice was lawful and did not violate a federal prohibition on creating a registry of gun owners. Judge Tatel authored the 2-1 majority opinion, and was joined by Garland. Tatel wrote:
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. [National Rifle Association of America, Inc. v. Reno, U.S. Court of Appeals, D.C. Circuit, 7/11/00]
The NRA Appealed The Decision To The Supreme Court, And The Court Declined To Reopen The Case. Following the D.C. Circuit decision to affirm the legality of the FBI's background check system for gun purchases, the NRA appealed the case to the Supreme Court. The conservative-leaning court “without comment, turned aside the NRA's challenge,” as reported by the Associated Press. [Associated Press, 6/26/01]
MARCH 16: Garland Is Nominated And The NRA Immediately Regurgitates JCN's Smears
NRA: Garland “Is Bad On Guns.” The NRA responded to Garland's nomination on Twitter by promoting JCN's attack on Garland at National Review:
-- NRA (@NRA) March 16, 2016
NRA Repeats JCN's False Claim That There Is Evidence Garland Would Overturn Landmark Second Amendment Decision. The NRA subsequently repeated JCN's baseless suggestion that Garland's record as a judge on the D.C. Circuit indicates that he would overturn the landmark Second Amendment case District of Columbia v. Heller:
-- NRA (@NRA) March 16, 2016
MARCH 16: JCN Doubles Down With An Even More Erroneous Characterization Of Garland's Role In Parker
False JCN “Topline Point”: Garland Voted “To Uphold D.C.'s Very Restrictive Gun Restrictions.” A messaging document released by JCN shortly after Garland was nominated abbreviated their previous smear to make the false claim that Garland's vote to rehear Parker en banc was instead a vote “to uphold D.C.'s very restrictive gun restrictions.” In fact, Garland did not participate in the original Parker decision, which struck down D.C.'s handgun ban. His vote to rehear the case en banc does not mean he voted to uphold D.C.'s law. [SCOTUS Brief, 3/16/16; Media Matters, 3/16/16]
MARCH 16: JCN's Falsehoods Immediately Begin To Circulate In Conservative Media
Fox News' Bret Baier Pushed Erroneous And Backwards Claim Garland “Opposed Justice Scalia's Take On The Second Amendment In The Heller Case.” Baier, the anchor of Fox News' evening news show Special Report, falsely claimed during his March 16 broadcast that Garland “opposed Justice Scalia's take on the Second Amendment in the Heller case.” But not only did Garland never vote on the Parker case, Justice Antonin Scalia's majority decision in the District of Columbia v. Heller came after Garland considered the request to rehear the decision en banc, and Heller broke with the precedent the lower courts were required to follow:
BRET BAIER: Well let's talk about Judge Garland here. He obviously has received a lot of praise from Republicans in the past and Democrats as well. But there are some issues that raise eyebrows for Republicans. One is on the Second Amendment. He opposed Justice Scalia's take on the Second Amendment in the Heller case. How would you respond to conservative concerns that Garland would be the court's -- change the court's direction in limiting Second Amendment rights? [Fox News, Special Report, 3/16/16]
Fox News' Bill O'Reilly Falsely Claimed Garland “Voted ... In Washington, D.C. To Keep Guns Away From Private Citizens.” During the March 16 broadcast of his show The O'Reilly Factor, host Bill O'Reilly relied on JCN's attacks to falsely claim that Garland had voted at some point in favor of D.C.'s handgun ban, even though no such vote ever happened:
BILL O'REILLY: He's not some crazy left-wing bomb thrower. But he voted, so the folks know, in Washington, DC to keep guns away from private citizens, and the Supreme Court of course said no, that is unconstitutional. But he voted to keep the guns away. Just that vote, and you must know this, alienates most in the Republican Party, so they never would vote to confirm him. [Fox News, The O'Reilly Factor, 3/16/16]
PolitiFact: “Bill O'Reilly Wrongly Says Merrick Garland Voted To Ban Citizens From Having Guns In DC.” PolitiFact rated O'Reilly statement about Garland “false,” noting “Garland never heard the case about Washington gun laws from the bench, and so he never voted on it. He voted in favor of reconsidering the case, but it's impossible to extrapolate from that vote his position on the merits of the case.” [PolitiFact.com, 3/18/16]
MARCH 20: JCN Chief Counsel Invited Onto Sunday Show To Push Falsehoods, McConnell Announces NRA Ultimatum
JCN Chief Counsel Severino: Garland “Has A Gun Vote That Makes Us Think He Doesn't Even Think You Have A Second Amendment Right To Have A Gun In Your Own House For Your Own Protection.” During a March 20 appearance on ABC's This Week, Severino mischaracterized Garland's role in Parker to claim, “He has a gun vote that makes us think he doesn't even think you have a Second Amendment right to have a gun in your own house for your own protection.” [ABC, This Week, 3/20/16]
Majority Leader McConnell Cites NRA Opposition To Garland -- Which Is Based On JCN Smears -- As Reason To Obstruct Garland's Nomination. During a March 20 appearance on Fox News Sunday, Sen. Mitch McConnell (R-KY) responded that he “can't imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association,” after being asked if GOP senators would consider Garland's nomination. [ThinkProgress, 3/20/16]