Koch-Backed NFIB Smears Merrick Garland As A Radical With Dishonest “Scorecard” Attacking His Judicial Rulings

Special Programs Climate & Energy

Written by Timothy Johnson

Published

The National Federation of Independent Business (NFIB) -- a Koch-backed front group that is opposing the nomination of Merrick Garland to the Supreme Court -- released a misleading “scorecard” on Garland’s rulings as a judge on the D.C. Circuit, claiming that Garland is not “moderate” because he supposedly sides too often with federal agencies to the detriment of business interests.

But what NFIB fails to mention in its “scorecard” is that many of the decisions involving federal agencies that NFIB has selected for criticism -- namely the Environmental Protection Agency (EPA), Department of Labor (DoL), and National Labor Relations Board (NLRB) -- were unanimous rulings where Garland was often joined by fellow D.C. Circuit judges appointed by Republicans.

While claiming to speak for small businesses, NFIB is actually a front group that has received millions of dollars from the Koch brothers network and other large corporate interests, and its opposition to Garland is part of a campaign against environmental, labor, and healthcare policies that most small businesses support.

On April 12, NFIB released a “judicial scorecard” purporting to analyze Garland’s career as a judge on the D.C. Circuit. The group promoted its “scorecard” with a press release that asserted Garland’s judicial record indicates he “would overwhelmingly rule in favor of the government, unions, and environmental groups at the expense of small businesses.” According to an NFIB official quoted in the press release, “When you look at Judge Garland’s record on the bench, it is absolutely impossible to conclude that he is anywhere near a moderate."

But NFIB’s attempt to scandalize Garland’s record, which is widely viewed as moderate, dishonestly omits important context.

According to a Media Matters analysis of the 35 cases cited by NFIB concerning Garland’s judicial opinions on the EPA, DoL, and the NLRB -- issues highlighted as the most important in NFIB’s press release and classified as “wins” for the government by the NFIB -- judges appointed by Republicans were on the same side as Garland in 28 out of 35 -- or 80 percent -- of the cases.

In fact, in 17 of the 35 EPA, DoL, and NLRB cases NFIB complains about in its scorecard, Garland wrote the majority opinion for three-judge panels that were composed of him and two judges appointed by Republicans. In only one of the 35 cases did Garland write a majority opinion for a panel composed entirely of judges appointed by Democrats.

NFIB’s attempt to scandalize Garland’s judicial opinions for siding with government agencies more often than not also ignores the longstanding Chevron Deference doctrine, which “raised the issue of how courts should treat agency interpretations of statutes that mandated” agency action, where the “Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable” -- meaning that there is nothing unusual about agencies often prevailing against challenges to their interpretation of law.

Below, Media Matters provides the context to the cases NFIB attempts to scandalize with its scorecard, demonstrating how a strong majority of the EPA, DoL, and NLRB cases NFIB cites to claim Garland is not “moderate” involved Garland’s agreement with Republican appointee judges:

Environmental Protection Agency

The NFIB scorecard suggests that Garland has been overly deferential to the EPA by claiming that the agency “wins 94% of cases” before Garland, citing eight EPA “wins” versus one “split decision.”

The scorecard does not mention that in six of the EPA’s “wins,” Garland was in agreement with at least one Republican-appointed judge. NFIB’s scorecard also doesn’t tell the full story or misleads on the other two cases it cites.

The NFIB scorecard includes the 1999 decision American Trucking Ass'n v. EPA. Garland did not actually participate in the ruling in this decision, so it does not merit inclusion in NFIB’s scorecard. Instead, Garland later joined several judges in voting in favor of rehearing the case en banc before the entire D.C. Circuit. Legal scholars have said a vote to rehear a case en banc is not a ruling on the merits of the case, and as a matter of law, does not signify a “win” for the EPA, although the NFIB scorecard baselessly claims that “Garland would have ruled for EPA.”

The scorecard also includes the 2002 decision American Corn Growers Ass'n v. EPA. Garland issued an opinion concurring and dissenting in part with the majority opinion, which was issued per curium on behalf of a panel with two Democratic appointees and one Republican appointee. In his opinion, Garland noted that his concurrence applied to “most of” the majority opinion, which included the Republican-appointed judge.

Of the six cases cited by NFIB that could actually be reasonably characterized as EPA “wins," Garland was joined in his opinion by at least one Republican appointee every time:

  • In Allied Local and Regional Manufacturers Caucus v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Tatel (Clinton appointee).
  • In Appalachian Power Co. v. EPA, a per curium opinion authored by Garland and Judge Wald (Carter appointee) was joined by Henderson (H.W. Bush appointee).
  • In Cement Kiln Recycling Coalition v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
  • In Chamber of Commerce of U.S. v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Brown (W.Bush appointee).
  • In National Association of Home Builders v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Rogers (Clinton appointee) and Williams (Reagan appointee).
  • In Utility Air Regulatory Group v. EPA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Rogers (Clinton appointee) and Kavanaugh (W. Bush appointee). Kavanaugh also filed a separate concurring opinion.

Department of Labor

The NFIB scorecard suggests that Garland has been overly deferential to the DoL by claiming that the agency “wins 87% of cases” before Garland, citing eight DoL “wins” versus two “losses.”

The scorecard does not mention that in six of the DoL’s “wins,” Garland was in agreement with at least one Republican appointee judge.

Here are the Republican appointees who joined Garland’s opinions in favor of DoL in six of cases cited by NFIB:

  • In AE Staley Manufacturing Co. v. Secretary of Labor, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Edwards (Carter appointee) and Henderson (H.W. Bush appointee).
  • In Edison Electric Institute v. OSHA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Edwards (Carter appointee) and Henderson (H.W. Bush appointee).
  • In Millard Refrigerated Services, Inc. v. Secretary of Labor, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Griffith (W. Bush appointee) and Silberman (Reagan appointee).
  • In Secretary of Labor v. Twentymile Coal Co., Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Randolph (H.W. Bush appointee) and Williams (Reagan appointee).
  • In Sturm, Ruger & Co., Inc. v. Chao, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Randolph (H.W. Bush appointee) and Sentelle (Reagan appointee).
  • In RAG Cumberland Res. LP v. FMSHRC, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Silberman (Reagan appointee) and Williams (Reagan appointee).

National Labor Relations Board

The NFIB scorecard suggests that Garland has been overly deferential to the NLRB by claiming that the independent agency “wins 78% of cases” before Garland, citing 19 NLRB “wins” versus five “losses” and one “split decision.”

The scorecard does not mention that in 16 of the NLRB’s “wins,” Garland was in agreement with at least one Republican appointee judge. In the other three cases, FedEx Home Delivery v. NLRB, Northeast Bev. Corp v. NLRB, and Ross Stores, Inc. v. NLRB, the NFIB scorecard doesn’t tell the full story -- in all three cases Garland only partially dissented, agreeing in part with his Republican-appointed colleague's majority ruling.

Here are the other 16 cases cited by NFIB where at least one Republican appointee agreed with Garland’s decision in favor of the NLRB:

  • In Assoc. of Civ. Tech., Puerto Rico Army v. FLRA, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Tatel (Clinton appointee) and Griffith (W.Bush appointee).
  • In Antelope Valley Bus Co., Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Tatel (Clinton appointee) and Williams (Reagan appointee).
  • In Ark Las Vegas Restaurant Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
  • In Bally’s Park Place, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Ginsburg (Reagan appointee).
  • In Ceridian Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Griffith (W. Bush appointee).
  • In Dean Transportation, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Randolph (H.W. Bush appointee).
  • In Flying Food Group, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Kavanaugh (W.Bush appointee).
  • In Halle Enterprises, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Tatel (Clinton appointee).
  • In ITT Industries, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judge Randolph (H.W. Bush appointee) and Judge Roberts -- a Bush appointee who is now Chief Justice of the Supreme Court.
  • In Lee Lumber and Bldg. Material Corp. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Sentelle (Reagan appointee) and Rogers (Clinton appointee). Sentelle also filed a separate concurring opinion.
  • In Mohave Elec. Co-op, Inc. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Henderson (H.W. Bush appointee).
  • In Pacific Bell v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Ginsburg (Reagan appointee) and Williams (Reagan appointee).
  • In Pacific Coast Supply, LLC v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Griffith (Bush appointee) and Kavanaugh (Bush appointee).
  • In Shamrock Foods Co. v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Tatel (Clinton appointee).
  • In Spectrum Health -- Kent Community Campus v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Henderson (H.W. Bush appointee) and Griffith (Bush appointee).
  • In Spurlino Materials, LLC v. NLRB, Garland issued a unanimous opinion on behalf of a three-judge panel that also included Judges Williams (Reagan appointee) and Randolph (H.W. Bush appointee).

Charts by Oliver Willis.