Obama’s Supreme Court nominee has a history of siding with health agencies

WASHINGTON — The Food and Drug Administration and other public health agencies will likely be pleased by President Barack Obama’s nomination Wednesday of Merrick Garland to the Supreme Court.

That’s because Garland, currently chief judge on the US Court of Appeals in Washington, D.C., is known for backing federal agencies like FDA and the Environmental Protection Agency against legal challenges on health-related cases.

And although he does not have a long list of legal opinions on health-related cases, Garland has sided with federal agencies on cases involving medical marijuana, access to experimental drug treatments, and limiting public exposure to mercury.

In the case on medical marijuana, heard in 2012 and decided in 2013, Garland was reluctant to second-guess the Drug Enforcement Administration’s reading of the medical studies and its insistence that marijuana should be treated as a dangerous drug with no medical value. Supporters of medical marijuana wanted the agency to change its classification, arguing that DEA was biased against marijuana and was overlooking its benefits and hyping its harms.

“Don’t we have to defer to their judgment?” Garland asked, according to the Los Angeles Times. “We’re not scientists. They are.”

 

Garland has had a reputation for years as a judge who takes the federal agencies’ sides. “Judge Garland has strong views favoring deference to agency decision makers,” legal scholar Tom Goldstein wrote when Garland’s name was mentioned as a possible nominee back in 2010. “In a dozen close cases in which the court divided, he sided with the agency every time. “

But Washington lawyer Reuben Guttman, an expert on FDA law, suggested that Garland would still ask the agencies to justify their arguments.

“While it is always difficult to predict with precision how a judge will opine when seated on the Supreme Court, my sense is that Judge Garland fully respects the role of expert agencies like the FDA, but at the same time will rigorously look behind their decisions to determine whether they are governed by the proper administrative process,” he said.

It’s not at all clear that Garland will get the chance. Most Senate Republicans are refusing to even consider his nomination, saying the next president should fill the Supreme Court seat vacated by the death of Justice Antonin Scalia earlier this year.

Garland has also sided with the FDA on the issue of experimental treatments for terminally ill patients.

In the 2007 case, the family of a young woman, Abigail Burroughs, sued the FDA for access to an experimental drug to treat her head and neck cancer. The Burroughs launched the Abigail Alliance, and, together with the Washington Legal Foundation, asked the court to grant access to Erbitux, which was being tested for colon cancer.

The case first went before a three-judge panel, which ruled in favor of the petitioners. But when the case was referred to the full circuit court panel, they reversed that decision. Garland was among the judges ruling in favor of FDA.

Garland, who was born and raised in Illinois, first rose to prominence handling tough antiterrorism cases for the Department of Justice, including the Oklahoma City bombing.

He attended Harvard University and Harvard Law School on scholarships. After law school, he was a clerk for Second Circuit Judge Henry Friendly and then Supreme Court Justice William Brennan.

Garland then worked as a lawyer in private practice before becoming a federal prosecutor and taking a succession of jobs at the Justice Department.

He was nominated to the D.C. Circuit in 1997, and was confirmed by a vote of 76 to 23.

Ike Swetlitz contributed to this report.

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