The letter that 44 top in-house lawyers signed and sent to the Senate Judiciary Committee on Thursday, which asks for hearings on Judge Merrick Garland’s nomination to the U.S. Supreme Court, is the brainchild of a group of former Department of Justice attorneys.
Garland, currently chief judge of the U.S. Court of Appeals for D.C. Circuit, spent three stints as a federal prosecutor including as principal associate deputy attorney general in the 1990s. While there, he supervised Jonathan Schwartz, who is now Univision’s chief legal and corporate affairs officer.
After Garland was nominated in March to fill the vacancy left by the death of Associate Justice Antonin Scalia, and Senate Republicans announced they would not hold a hearing on his nomination, Schwartz and several of Garland’s former DOJ colleagues started to brainstorm ways to help him.
“We thought it would be great if we could put together a letter ... from GC’s,” he said.
For months, Schwartz has been reaching out to GCs in his network and asking them to reach out to other GCs in their network to sign the letter.
Ultimately, 44 attorneys from nearly every sector signed the letter in their personal capacity, and not on behalf of their companies. The attorneys work at Alcoa, Blackberry, Cargill, Evercore, Electronic Arts, Estee Lauder, Houlihan & Lokey, Hormel Foods, International Paper, McKesson Corp, Nike, Pinterest, Sony Music Entertainment, Square Inc, Viacom, 3M and others.
The letter can be read in full here.
It calls Garland “exceptionally well-qualified,” but does not ask for his confirmation. Instead, it asks for a hearing.
“To me, it’s more about the process and the rule of law here,” said Don Rosenberg, general counsel of Qualcomm, who signed but does not know Garland personally. “We need to have vacancies filled on the Supreme Court, on any of the federal courts frankly. It’s somewhat disturbing to me that we are slow to proceed.”
He added, “There’s not to my knowledge another case in history where the Senate has refused to meet and put [a nominee] up for a vote.”
Two law professors who studied that issue concluded the lack of hearing for Garland is unprecedented.
Their paper identified 103 cases, including eight during an election year, in which a president began an appointment process to fill a vacancy on the U.S. Supreme Court before the election of his successor. In all cases, the Senate held a hearing on the nominee, the paper found.
One of the authors, Jason Mazzone, of the University of Illinois College of Law, told Big Law Business it is not unusual for business groups to weigh in on judicial nominations. But he said the GCs’ letter is “unique” in that they’re asking for a hearing, rather than advocating for Garland’s confirmation or rejection.
“It is really peculiar that you’d even have to write a letter to get the Senate to give a hearing to a Supreme Court nominee who is as eminently qualified as Garland,” said Marc Baum, one of the signatories of the letter who said he does not personally know Garland.
The letter states that having eight justices is undesirable for businesses because in cases of tie votes, the lower court decision is affirmed and there is no national precedent, which creates uncertainty.
“These 4-4 splits are not good because they leave important questions of law unresolved without authoritative resolutions,” said David Kris, general counsel of Intellectual Ventures, who signed the letter and met Garland while working in the DOJ in the 1990s.
Although the letter purports to take no position on whether the Senate should nominate Garland, it does endorse him as well-qualified.
Schwartz also wrote that he “personally believe[s] that [Garland] would be an outstanding Associate Justice” in his cover letter to the Senate Judiciary Committee, to whom the GC’s letter was sent.