More significant for conservatives should be Garland’s general deference to the police in criminal cases. In a review of Garland’s criminal cases in 2010, SCOTUSblog concluded that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions...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.” This record is consistent with Garland’s record as the number two Justice Department official prosecuting the Oklahoma City bombing case. As Obama noted, Garland considered the prosecution “the most important thing I have ever done in my life.”
Garland has been generally deferential to the government in some notable terrorism cases, perhaps reflecting his experience coordinating the investigation and prosecution of the Unabomber, Ted Kaczynski. He joined the majority opinion in Al Odah v. United States, denying habeas corpus protections to enemy combatants held at Guantanamo Bay. The Supreme Court subsequently overruled that decision in Boumediene v. Bush, although it’s not obvious, as Roberts pointed out in dissent, that the decision was consistent with the existing precedent that Garland had to apply. At the same time, Garland has not always deferred to the government in Guantanamo related terrorism cases. In Parhat v. Gates a Combatant Status Review Tribunal decided that Huzaifa Parhat, a detainee at Guantanamo Bay, was an "enemy combatant." Garland, writing for the majority, found that the Tribunal’s decision was invalid because it had based its decision on inadequate evidence.
Like Louis Brandeis, who was confirmed on June 1, 1916, 125 days after his nomination, Garland is not an unwavering devotee of judicial deference. He has generally been a robust defender, for example, of the First Amendment rights of speech and petition. Dissenting in Lee v. DOJ, he wrote that “if our case law has that consequence [of eliminating broad application of the reporter’s privilege], it will undermine the Founders’ intention to protect the press ‘so that it could bare the secrets of the government and inform the people.’” And he wrote the court’s opinion in Initiative and Referendum Institute v. U.S.P.S., which upheld a First Amendment challenge to a regulation prohibiting the solicitation of signatures outside post offices. There was “no question,” he wrote, that the solicitation of signatures constitutes protected speech.
Like the conservative icon Henry Friendly, in short, Garland is a judge who enforces rights enumerated in the Constitution while generally deferring to legislatures, agencies, and elected officials when the Constitution doesn’t speak clearly. He recognizes, as Justice Oliver Wendell Holmes Jr. put it, that the Constitution “is made for people of fundamentally differing views.” That’s why there’s no nominee better suited to bring the Court and the country together in these polarized times. And Republicans are already acknowledging that they are unlikely to get a better nominee from a Democratic president. “If Hillary Clinton or Bernie Sanders is elected president in November, the Senate could then proceed to act on the Garland nomination,” Ed Whalen wrote hours after the Garland nomination. In this polarized political climate, it’s hard to imagine higher praise.