Legal Scholars: Reading Anti-Gun Bias Into Merrick Garland's En Banc Vote Is A "Dangerous" Assumption

Blog ››› ››› JOE STRUPP

Legal experts at some of the nation's top law schools told Media Matters that Supreme Court nominee Merrick Garland's vote to rehear a gun-related case years ago cannot be held up as evidence that he is anti-gun.

On Wednesday, President Obama nominated Garland -- currently the chief judge of the United States Court of Appeals for the District of Columbia -- to fill the vacancy on the Supreme Court. Even before his nomination was announced, the discredited right-wing group Judicial Crisis Network (JCN) was laying the groundwork for conservatives to oppose him over his purported views on the Second Amendment.

In a March 11 post for National Review, JCN chief counsel Carrie Severino argued that Garland has a "very liberal view on gun rights" in part because he voted in 2007 in favor of the full D.C. Circuit Court rehearing an unprecedented case on Washington, D.C.'s handgun ban. She added that this vote for the full court was somehow indicative of his desire to overturn Justice Antonin Scalia's D.C. v. Heller decision, which upended precedent a year after the D.C. Circuit case and laid down new constitutional rules for the Second Amendment.

Shortly after Garland's nomination was announced, the National Rifle Association tweeted a link to Severino's piece to label Garland "bad on guns." JCN also released a set of "topline points" after the announcement falsely claiming Garland had voted "to uphold D.C.'s very restrictive gun restrictions."

The idea that Garland is somehow anti-gun based on the 2007 vote that predated Heller has since spread through right-wing media.

But legal scholars disagree.

In 2007, the D.C. Circuit decided the case Parker v. District of Columbia, which challenged the constitutionality of Washington D.C.'s ban on private handgun ownership. In the 2-1 decision, a D.C. Circuit panel of three judges ruled that the ban was unconstitutional.

Garland did not participate in that decision.

Garland's involvement came after the D.C. government asked for the case to be reheard en banc, which meant in front of the entire appeals court. In a 6-4 vote, the court declined to rehear the case, without explanation. Along with his conservative colleague Judge A. Raymond Randolph, Garland was one of four judges who voted to rehear it. 

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!"

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