The 2016 nomination and the Senate boycott
Merrick Garland enters the program in a 2016 episode with Ilya Shapiro of the Cato Institute, during a caller segment about the Republican-controlled Senate’s refusal to act on his Supreme Court nomination. A caller from San Francisco, Raymond, argued that the treatment of Garland was inconsistent with the practice of letting a sitting president’s nominee receive consideration, and tied his complaint to the constitutional limit on presidential terms: the point of limiting terms, he said, was so that a president could not pack the court over sixteen years, and the corollary is that a president who is actually in office when a justice dies or resigns should get that nominee a chance. He called the refusal to hold hearings bad form and said the Senate should take a vote on Garland and let the president nominate somebody else if the vote failed. Ilya Shapiro on the Supreme Court in the Balance (2016)
Bob Zadek pressed the caller on whether his objection was political or constitutional, asking whether he was suggesting it was bad politics not to give Garland a hearing or that it violated the words or intent of the Constitution. The caller answered that he did not know if there was any constitutional requirement, noting that there were no hearings until 1916, for Brandeis, and then after that 1962. Ilya Shapiro on the Supreme Court in the Balance (2016)
Zadek then offered his own assessment: Garland was clearly going to be denied a hearing, and the issue had left the public discourse. The public, he said, with a very short attention span, did not seem to care, and Garland would not affect how people voted in the upcoming Senate elections. He added that whether the country would end up with a worse justice than Garland remained to be seen, and that he could not speculate. The caller replied that Republicans would not mount the boycott if they did not think they could get a better justice. Ilya Shapiro on the Supreme Court in the Balance (2016)
Garland as precedent for court packing
By April 2019 the Garland episode had been recast as a precedent. In a discussion of structural changes to the Supreme Court, David Kaplan told Zadek that he had come around tentatively to the position that court packing is probably right, a view he attributed to the hard left and to a number of Democratic candidates. Court packing, he noted, died a quick death in 1937 after FDR proposed it, and became unimportant because the Supreme Court began upholding New Deal laws. Demystifying the Supreme Court (2019)
Kaplan explained the mechanics: court packing means adding seats to the Court, and only an act of Congress is needed. If Democrats took the White House, retained the House and took the Senate, they could pass a law increasing the size of the Supreme Court from nine to eleven, appoint two liberals, gain control 6-5, and undo the Gorsuch and Kavanaugh appointments. He called this terrible for the Court in the short term, because it would make the Court seem even more brazenly political, and predicted Republicans might later add two seats to create a thirteen-member court. Demystifying the Supreme Court (2019)
The justification he offered was the Garland stonewall. When the Republicans stonewalled Merrick Garland, Kaplan said, which though legal was an outrageous violation of norms, it seemed to him that the Democrats have to fight fire with fire, and that you cannot bring a knife to a gunfight. He described court packing as probably, regrettably, a good idea in the short term, with the hope that both parties and both ideologies would eventually disarm and lower the temperature. Demystifying the Supreme Court (2019)
A later 2019 episode with Ilya Somin is listed as a deep dive into court packing and its implications, with Merrick Garland among its topics alongside FDR, term limits and the Bill of Rights. The excerpt for that episode contains no substantive discussion, only the topic list and speaker identification. How to Create a Legitimacy Crisis (2019)
Garland as Attorney General
Garland next appears in a 2021 episode on asylum and Afghanistan, in the role of Attorney General. Zadek introduced the subject by describing an article by his guest, Ilya Somin, about a sub-exception dealing with slave labor and a policy carried over from the Trump administration to the Biden administration, with certain action taken by Attorney General Garland. Hard Questions About Asylum and Afghanistan (2021)
Somin explained the underlying law: asylum is available to people subject to persecution based on race, religion, nationality or political views, among other criteria, but there are exceptions, one of them providing material support for terrorism. He said the Board of Immigration Appeals, an executive branch agency within the Justice Department that makes judicial-like decisions, decided in 2018 that a slave laborer for a terrorist organization had provided material support for terrorism and was therefore not eligible for asylum. Hard Questions About Asylum and Afghanistan (2021)
Zadek asked how easily that line of reasoning could be overcome, and whether the Attorney General could act alone. Somin answered that the BIA decision binds lower-level executive branch officials, including case officers who consider asylum requests in the first instance, but that under the statute establishing the BIA’s powers the Attorney General can reverse its decisions at a mere stroke of his pen, using what is called his certification power. He noted that Jeff Sessions used this power a number of times in the Trump administration to reverse BIA rulings favorable to immigrants and asylum seekers, and that the new Attorney General, Merrick Garland, had used it in some other cases himself already. Hard Questions About Asylum and Afghanistan (2021)
Somin said he hoped Garland, if he caught wind of the decision, would see how ridiculous the BIA’s ruling was and certify and reverse it. He added that Congress could pass a law making clear that being a slave laborer is not material support for terrorism, and suggested Congress might adopt a system where such issues are decided by an independent judicial body outside the Attorney General’s control. Hard Questions About Asylum and Afghanistan (2021)
Zadek then offered his own legislative fix, which he framed as his opinion as a non-immigration specialist: adding the word voluntary to the exclusion for material support for terrorism would make the slave labor line of cases disappear, and would be politically acceptable. He reasoned that without a word like intentionally, anyone paying taxes to an autocratic terrorist government would theoretically be providing material support, albeit involuntarily and indirectly. Hard Questions About Asylum and Afghanistan (2021)
Across episodes
The Garland nomination is treated as an open controversy in the 2016 episode, where a caller argues the Senate should at least vote and Zadek predicts the issue will not affect Senate elections; by 2019 the same stonewall is treated as a settled grievance and cited by David Kaplan as the justification for court packing, a shift from debating whether the boycott was wrong to treating it as a reason to restructure the Court. The 2021 episode moves to a different branch of Garland’s career, his use of the Attorney General’s certification power over Board of Immigration Appeals decisions. The 2019 episode with Ilya Somin lists Garland among its topics but the excerpt contains no discussion of him.
What the sources do not cover
The excerpts say nothing about Garland’s earlier career, his education, his service on any court, or his nomination’s formal status or fate. They do not describe the legal reasoning of any case he decided, nor the outcome of the 2016 nomination fight beyond the predictions voiced on air. The 2019 Somin episode’s treatment of Garland is unavailable beyond its topic list, and the 2021 discussion concerns only his certification power over one immigration ruling.