(Photo by Diego M. Radzinschi/The National Law Journal)
On Wednesday, President Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, to fill Justice Antonin Scalia’s recently vacant seat on the U.S. Supreme Court. Although much has been written over the last 2 days about Judge Garland’s prior decisions, nothing has been written about his bankruptcy decisions. Suspicious, right? Something’s up, and I’m going to get to the bottom of it. I’ll be right back. Gotta do some quick research.
In the meantime, check out this White House promo video for Judge Garland. Spoiler Alert: Still not a word about bankruptcy.
(Did Wes Anderson handle the font selection? Nice.)
Okay, I’m back. Yeah, apparently, Judge Garland has never authored a bankruptcy opinion. Mighty convenient if you ask me. Clearly, then, the bigger story is that Judge Garland just hates bankruptcy law. In such a prolific Circuit for bankruptcy appeals, what else could be the explanation? Alright, you got me: Other than the Federal Circuit, the D.C. Circuit is the least prolific Circuit Court for bankruptcy appeals. In fact, since Judge Garland’s appointment in 1997, the D.C. Circuit has, according to LexisNexis, issued only 38 bankruptcy-related decisions. Of those, Judge Garland was on the panel in maybe 11 of them. And out of those 11, one is interesting, one is important, four are pretty routine, and rest are garden variety per curiam decisions.
SEC v. Sec. Investor Prot. Corp., 758 F.3d 357 (D.C. Cir. 2014) is interesting for two reasons. First, Judge Sri Srinivasan wrote the opinion. Of course, most reported that President Obama had narrowed his appointee list down to 2 by Tuesday: Garland and Srinivasan. Therefore, the SIPC decision gives us the two of them on a bankruptcy-esque panel together. For the oral argument audio, click here. Second, it’s interesting to see Judge Srinivasan borrow “substantive consolidation” concepts from bankruptcy law for application in a SIPC case and, in the process, rely so heavily on Collier in making his case.
NextWave Pers. Communs., Inc. v. FCC, 254 F.3d 130 (D.C. Cir. 2001) is, of course, the biggie. Although Judge Tatel wrote the opinion for the panel, NextWave is one of only a handful of Judge Garland’s panel decisions that the Supreme Court has chosen to review. And as we reminded you last month in our review of the late Justice Scalia’s opinions, Justice Scalia wrote the NextWave opinion for the Court. So there you have it, an epic showdown between President Obama’s sort of liberal appointee and the famously-conservative justice that he might replace! Well, no, not exactly. Justice Scalia actually affirmed Judge Garland’s decision. Rather, Justice Breyer was the lone dissenter in NextWave.
The remainder of Judge Garland’s bankruptcy panel opinions are either pretty routine (e.g., who has standing to appeal as a party-in-interest; appeals that are mooted by 363 sale closings; respecting a bankruptcy court’s factual findings on a Chapter 13 dismissal; etc.) or reflect a Circuit Court’s (ruthless?) talent for throwing out bankruptcy appeals before they even get started.
The bottom line is that President Obama has foiled my not so clever attempt to provide a Scalia/Garland bookend on this blog. Therefore, notwithstanding my snarky title, we really have no idea what Judge Garland thinks about bankruptcy law. Although your opinion of him very well might boil down to your own politics, Judge Garland is, by most accounts, a brilliant, capable, and serious judge. Presidents on both sides of the aisle tend to get that part right.
And perhaps therein lies the answer: Judge Garland has all of the hallmarks of a typical (I didn’t say ideal or even desirable) nominee. He’s white. He’s male. He’s middle-aged (or elderly to those who are under 30). He’s Harvard-educated. He was on the Harvard Law Review. He enjoyed two prestigious clerkships–one with conservative Second Circuit Judge Henry Friendly and another with Supreme Court Justice William Brennan (to some, the “Liberal Lion”). He earned his partner stripe in just four years at Arnold & Porter, one of D.C.’s finest firms. And he played very prominent roles in the Department of Justice.
Thus, it might be perfectly reasonable to assume that bankruptcy probably isn’t Judge Garland’s thing. Indeed, we’ve blogged before about the Supreme Court’s arguable distaste for bankruptcy. Therefore, in our little practice area, Judge Garland might be right at home on the Court. Of course, only time and politics will determine whether it even matters what Judge Garland thinks about bankruptcy. Check back in 90 days to 4 years to see how well this post has aged.
Disclaimer: This is a poor attempt to lighten a serious issue. And these are my views, only, and do not reflect the views of my colleagues.