ZadekpediaMerrick Garland enters these episodes in two roles: as a Supreme Court nominee whose treatment became a grievance, and as Attorney General whose powers over immigration adjudication drew a guest’s appeal.
The 2016 nomination and the Senate boycott
In a May 2016 episode, a caller identified as Raymond raised Garland during a discussion with Ilya Shapiro of the Cato Institute. Raymond argued that a president who is in office when a justice dies or resigns should get the nominee a chance at a vote, and that refusing Garland a hearing amounted to a boycott. He said there were no hearings until 1916, when Brandeis was nominated, and then after that 1962, and that he did not know whether any constitutional requirement existed, calling the refusal bad form and saying the Senate should take a vote and let the president nominate someone else if the nominee is rejected. Ilya Shapiro on the Supreme Court in the Balance (2016)
Bob Zadek pressed the caller on whether he was claiming bad politics or a constitutional violation, and later observed that Garland was clearly going to be denied a hearing and that the issue had left the public discourse, with a public of short attention span unlikely to care in upcoming Senate elections. He added that it remained to be seen whether a worse justice would result. The caller replied that the Republicans would not run the boycott if they did not think they could get a better justice. Ilya Shapiro on the Supreme Court in the Balance (2016)
The Garland precedent and court packing
By April 2019 the treatment of Garland had become, for guest David Kaplan, a precedent invoked in favor of court packing. Kaplan said that when the Republicans stonewalled Merrick Garland, the action was legal but an outrageous violation of norms, comparable to other conduct he attributed to Senate Republicans and the administration, and concluded that Democrats had to fight fire with fire and that court packing was probably, regrettably, a good idea in the short term. Demystifying the Supreme Court (2019)
In the same episode Kaplan described court packing as adding seats to the Court by an act of Congress, and said that if Democrats took the White House, held the House and took the Senate, they could increase the Court from nine to 11, appoint two liberals, control it 6-5, and undo the Gorsuch and Kavanaugh appointments. He said this would make the Court seem more brazenly political, that Republicans might later add two seats for a 13-member court, and that he hoped both parties would eventually disarm. He also supported an 18-year term limit for justices, which he said would require a constitutional amendment and would never happen. Demystifying the Supreme Court (2019)
A separate 2019 episode is described on the show as a deep dive into court packing and its implications, with Bob Zadek and guest Ilya Somin discussing the historical precedent set by FDR, the potential for a legitimacy crisis within the Supreme Court, and alternative reforms such as judicial term limits; the excerpt lists Merrick Garland among its topics but contains no further statement about him. How to Create a Legitimacy Crisis (2019)
Garland as Attorney General
In an August 2021 episode on asylum, Ilya Somin described a Board of Immigration Appeals decision holding that a slave laborer for a terrorist organization had provided material support for terrorism and was therefore ineligible for asylum. Somin said the BIA is part of the Justice Department, an executive branch agency making judicial-like decisions that are not part of the judiciary, and that its decision binds lower-level executive branch officials who consider asylum requests in the first instance. Hard Questions About Asylum and Afghanistan (2021)
Somin said that under the statute establishing the BIA’s powers, the Attorney General can reverse its decisions at a mere stroke of his pen using his certification power, issuing a memo that binds the BIA and lower-level officials. He said Attorney General Jeff Sessions used the 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. Somin said Garland could very easily reverse the slave-labor decision if he wanted to, and that he hoped Garland, if he caught wind of it, would see how ridiculous the ruling was and certify and reverse it. Hard Questions About Asylum and Afghanistan (2021)
Bob Zadek, offering what he called his own opinion as a non-immigration specialist, suggested that adding the word “voluntary” to the exclusion for material support for terrorism would make the line of cases disappear and would pass political muster. He also said the executive branch’s making of judicial-type decisions violates constitutional principles of separation of powers. Hard Questions About Asylum and Afghanistan (2021)
Across episodes
Garland is discussed in 2016 as a nominee denied a hearing, in 2019 as the precedent cited by David Kaplan for court packing, and in 2021 as an Attorney General with certification power over the Board of Immigration Appeals; the episodes show no development in the treatment of Garland himself, only a change in the office he occupies and in who is speaking about him.