That seemed to fit with a generous mindset, Jones said. “I watched him do the preliminary hearing with Terry Nichols, and afterwards he walked over and shook [Nichols attorney Michael] Tigar’s hand and said, ‘Well, I’m impressed,” Jones said.
Tigar, for his part, did not recall the incident, and remembered the government lawyer as being a distant figure in the case.
“Garland showed up for a bail hearing ... and that’s the only time I can remember him doing anything in the case,” Tigar said. “He had been sent out from Washington, D.C., and that was it. How he got the reputation as having a great deal to do with it—you couldn’t prove it to me.”
At the Justice Department, Garland went on to supervise other high-profile bombing cases, including the 1996 Atlanta Olympics attack and the prosecution of the Unabomber.
It's tough to predict how these experiences might influence Garland’s judicial philosophy. “I don’t know that it would necessarily be indicative of what type of justice he would be,” Jones said. One possibility, however, is that Garland’s experience prosecuting these horrific, high-profile cases has led him to be favorable to the government in criminal cases on the bench.
As Tom Goldstein wrote in 2010, when Garland was previously considered for the high court, the judge “rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein added:
Most striking, in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant …. One might expect that a judge with such a record on criminal law questions would be generally quite conservative across the board. That does not appear to be true, however.
On one occasion in the Oklahoma City case, Garland displayed some skepticism of the presumption of innocence. Tigar, defending Nichols, pointed out that his client had turned himself in to the police shortly after the bombing. (McVeigh fled after the bombing.) Quoting the Bible, Tigar said, "The guilty flee when no man pursueth, but the righteous are as bold as a lion.” Garland dismissed the contention out of hand, with a somewhat confusing reply: “He came in voluntarily after he knew he was being looked for. That does not suggest innocence.” (Would running away have been more exculpatory?)
For progressives worried about Garland’s progressive bona fides, and for conservatives and liberals who admired the late Justice Antonin Scalia’s frequent stands on the side of defendants, statements like this may cause unease.
So, too, might Garland’s record on national-security issues. Ben Wittes, who has tended to back greater government powers in the fight against terrorism, writes on Lawfare that Garland was Gorelick’s right-hand man at a time when “Gorelick was attempting a certain degree of integration between spies and cops, the Justice Department faced major espionage cases, and it sought and received expanded surveillance authorities under FISA.” Yet Garland also made a crucial 2013 ruling on drones, demanding the Obama administration provide more information.
In other words, it’s tough to trace direct lines through Garland’s pre-bench career to try to understand what sort of justice he’d be. That’s probably exactly how he, and the president, would like it.