When a group of Guantanamo Bay detainees turned to the courts in 2003, saying it was unconstitutional for the U.S. to hold them forever without a trial, Judge Merrick Garland said he couldn’t help them. In fact, he said, no court could.
But when another detainee came before Garland in 2008, arguing that the government had cut too many corners when it tried him as an enemy combatant, Garland agreed. In the span of just five years, he had ruled first that detainees were not entitled to a trial at all, and then that their trials had to be more fair.
Garland—the chief judge on the D.C. Circuit Court of Appeals and President Obama’s nominee for the Supreme Court—has heard dozens of cases related to the U.S.’s fight against terrorists, including some 20 cases specific to Guantanamo Bay. And his decisions in those cases illuminate far more than just his approach to national security law.
Taken together, Garland’s terrorism cases are a microcosm of his broader approach to the law and to his role as a judge. They are especially instructive in trying to assess what kind of judge Garland is, what kind of justice he would be, and how he would position himself in major cases.
There’s a remarkable consistency across Garland’s rulings, including the ostensibly liberal and ostensibly conservative ones. As much as he’s a moderate, Garland is a sort of judicial minimalist. His deference to the government is part of that, but only one part. He avoids expansive, unified theories of the law. He usually joins his colleagues’ opinions in full, passing up opportunities to expound separately on his own thinking. When he does write for the court, his writing is, frankly, boring.
In short, his apparent aim is to leave the lightest footprint possible on the law. Taken together, his national security cases display many of the same traits that people have noticed in his domestic-policy rulings, and help explain how those traits fit together.
“I think his role in the D.C. Circuit’s work in that specific area is a fairly indicative sampling of his larger jurisprudential approach,” said Steve Vladeck, an expert in national security law who teaches at American University. “He prefers narrow rulings, not writing separately, and, all things being equal, giving the federal government the benefit of the doubt.”
Nancy Gertner, a Harvard law professor and retired federal judge who knows Garland personally, agreed, noting Garland’s strict adherence to precedent in one of his most famous terrorism cases—even amid a significant disagreement over whether that precedent should have applied.
Of course, every federal judge is bound by Supreme Court precedent, so deference to the high court is in many ways just part of the job description. Often, though, it’s not clear whether a Supreme Court precedent controls some new case—and plenty of judges will lean into the ambiguity, seizing the opportunity to decide the issues themselves.
But in Al-Odah v. U.S., one of the first major lawsuits over Guantanamo, Garland was part of a D.C. Circuit ruling that went in the other direction—stretching to place itself under the umbrella of Supreme Court precedent, rather than to escape it.
A three-judge panel of the D.C. Circuit, which included Garland, ruled that no federal court had the power to decide whether Guantanamo prisoners were entitled to a trial, an attorney, or knowledge of the charges against them. It cited a Supreme Court decision barring lawsuits filed by Germans who had been accused of war crimes during World War II.
The detainees argued strenuously that their situation was different—unlike the German prisoners, they were not citizens of a country on which the U.S. had declared war, and they had not been charged with any crimes. Even so, the D.C. Circuit said, the Gitmo detainees’ circumstances were close enough. The German precedent applied—and no U.S. court had the jurisdiction to hear their case.
The Supreme Court later reversed that decision, ruling that Guantanamo detainees are in fact entitled to face formal charges. But Garland’s defenders argue that he still made the right call—that if a line separating the earlier case from Guantanamo detainees was going to be drawn, it was up to the Supreme Court to draw it.
Still, Garland’s terrorism cases bring together conservatives’ biggest complaint about him—that he’s too deferential to the federal government—with the biggest complaint on the left—that he’s too deferential to law enforcement.
In 2014, Garland joined a majority opinion allowing the government to perform genital searches of Guantanamo detainees before they met with their lawyers. “The only question for us is whether the new policies are rationally related to security. We have no trouble concluding that they are, in no small part because that is the government’s view of the matter,” the court wrote.
On similar grounds, Garland rejected a Freedom of Information Act suit that sought the release of photos of Osama bin Laden’s dead body. “Why should we not defer to” intelligence experts, Garland asked during oral arguments in that case, when those experts “are telling us there is a risk that Americans and others will die if we release the documents.”
But Garland’s deference has its limits. Breaking with the government is the exception, to be sure, but when those exceptions happen, they’re often consistent with anecdotes from friends and colleagues about Garland’s fastidiousness, including his experience prosecuting the Oklahoma City bombers—his first major terrorism case, and by all accounts an especially formative experience in his legal career.
“Merrick took pains to do everything by the book,” Obama said when he announced Garland’s nomination. “When people offered to turn over evidence voluntarily, he refused, taking the harder route of obtaining the proper subpoenas instead.”
Trusting the process
A similar insistence on process has been a hallmark of Garland’s rulings against the government, including his most significant ruling in favor of a Guantanamo detainee. In that case, Parhat v. Gates, most of the government’s evidence against an alleged enemy combatant was classified, and it would not reveal the source of its information. Because the court couldn’t determine whether that evidence was reliable, it wasn’t enough to justify a conviction, Garland ruled, ordering the U.S. to either release the detainee or give him a new judicial hearing.
He also balked at the CIA’s effort to fight off a FOIA lawsuit seeking documents about the U.S.’s drone policy. The CIA said it would not even confirm or deny the existence of any documents about drones. But the program clearly exists, Garland said, and the CIA clearly knows about it, since the CIA director himself has talked about its existence in public.
“The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an ‘intelligence interest’ in drone strikes,” Garland wrote.
That mild sarcasm is one of the few rhetorical flourishes anywhere in Garland’s record, on terrorism or otherwise—another sign of his consistent ability, even after 20 years on the D.C. Circuit, to avoid making waves. He would, if confirmed to the Supreme Court, be replacing one of the most assertive, lay-it-all-on-the-line justices in the high court’s history. And the biggest swing may not be in ideology—because Garland is nowhere near as liberal as Scalia was conservative—but in tone and in breadth.
“The Guantánamo cases have gotten a lot of attention because of their visibility,” Vladeck said, “but if there’s any unifying theme about Judge Garland’s 19-year tenure on the Court of Appeals, it’s how much his rulings tend to be hidden from view by the far louder, more flamboyant writings of his colleagues.”
A controversial overtime rule proposed by the Labor Department could have a sweeping effect on the way Washington does business. But in Congress, where the change is already being hotly debated, thousands of workers could stand to miss out on the pay boost it was designed to provide.
The rule requires employers to pay overtime to workers making less than $50,440 a year, more than doubling the current threshold. Advocates say it’s a needed boost to salaried workers whose pay often is not commensurate with the long hours they put in.
The Capitol Hill workforce in particular would stand to gain from the change—it’s known for its irregular hours and workaholic culture, and many of the staffers who keep Congress functioning come in under the $50,440 mark. Caseworkers, field representatives, legislative correspondents, legislative assistants, schedulers, and staff assistants all have median salaries below that threshold, according to 2013 data.
But if those staffers are going to see the benefits of the new rule, many will do so over the objection of their bosses. That’s because Congress is exempt from many workplace rules unless it affirmatively adopts them—and more than 100 members of Congress have already come out in objection to the overtime rule.
Paula Sumberg helps run the Congressional Office of Compliance, which was created to keep Congress in line with labor laws. The Office of Compliance’s board of directors issues proposals, many of which mirror rules already in place for non-congressional workers, but they must be passed by Congress to take effect on the Hill. In recent years, Sumberg said, Congress has been slow to take up proposals from her office.
“It’s hard to predict why Congress moves on any of our regulations,” she said. “I would hope that they would consider them. … If they couldn’t live with the way the private-sector law must apply, you either repeal the law or make changes. To ignore it would not be the best thing for the workforce.”
Another obstacle to implementing the overtime rule on the Hill is that the GOP-led Congress has cut staff budgets in a show of fiscal restraint. “It’s not like they’ve got a bunch of money lying around,” said Brad Fitch, president and CEO of the Congressional Management Foundation. “If you’re already spending your entire budget and most of it’s going toward labor anyway, it’s not like you can give everybody raises. The money isn’t there.”
Offices would have a few options to comply with the rule without exceeding their budgets. Some chiefs of staff, Fitch said, are planning to set hard 40-hour caps to ensure staffers don’t accrue overtime hours. Workers just below the threshold may see their pay bumped up to $50,500 to make them ineligible for overtime. Some offices may be forced to cut staff.
The impact wouldn’t be small; a large portion of Congress’s 15,000-plus staffers would be in line for the overtime eligibility. “There’s a lot of junior people making that range that are basically the engine of Capitol Hill, the perma-terns,” said Chris Jones, who runs PolitTemps, a political-staffing agency. “Are they going to be paid overtime? How is it going to affect all those people? … It will shift the work landscape for junior-level staffers in Washington.”
Off the Hill, though, the effects will be much more immediate. The business community is warning that the expanded overtime will lead to staffing cuts, slashed benefits, and lower salaries for new hires as companies try to meet their bottom line. “It would have an outsized impact on areas like greater Washington,” said Jim Dinegar, president and CEO of the Greater Washington Board of Trade. “You’re going to have to force people to work harder and smarter and fit it into a 40-hour week. … It’s yet another instance of costs to the business community that unfortunately may come at cost to employees.”
In Washington’s think tanks, nonprofits, and lobby shops, many workers regularly exceed 40-hour weeks—and capping their work time may not be easy. “In Washington, because of the culture, I don’t see how you’re going to stop folks from working,” said Jim Clarke, senior vice president of public policy at the American Society of Association Executives. “You’re not going to be able to make people leave their iPhone at the door. … In the association world, meetings are often on weekends. You’re going to have to look at changing how you put your hours together, your workweek. Whether it be the government or whatever, everybody’s impacted by this.”
Likewise, Washington’s journalism workforce shares many of the same characteristics. Cetewayo Parks, executive director of the Washington-Baltimore News Guild, thinks reporters stand to benefit from the rule. Most journalists, he said, work so many hours that their employers will have to raise their pay above the overtime threshold. “It’s unrealistic if they cap them at 40” hours, he said. “If the work isn’t done at 40, what do they do?”
Not everyone in the industry is convinced. “Many newspapers will not be able to meet the new standard,” said David Chavern, president and CEO of the Newspaper Association of America, in a statement. He added that according to a recent survey the association conducted, “most newspapers said that they would either have to replace full-time employees with those working part-time or convert current exempt employees to an hourly wage. The unintended consequence of the proposed rule is that employees would see a reduction in benefits and workplace flexibility and would be required to fill out timesheets.”
The rule is under review by the White House Office of Management and Budget, and could be published by July. It would likely go into effect 60 days later.
If you’ve listened at all to House Democrats in recent years, you couldn’t help feeling pessimistic about their prospects. The party downplayed its chances to win back a House majority—until 2022. They blamed gerrymandering for their problems, conveniently ignoring the fact that district lines in Illinois, Maryland, and Arizona were all drawn in the Democrats’ favor. For the first time in years, party leaders didn’t even go through the motions of saying they were going to capture the House in 2017, which has been the usual spin in recent election cycles. All this poor-mouthing has served to dampen recruitment, depress fundraising, and serve as a self-fulfilling prophecy that the GOP had a lock on the majority.
Suddenly, with the prospect that Donald Trump could head the GOP ticket in 2016, the mood has dramatically shifted. The party is scrambling to recruit candidates in diverse, GOP-leaning suburban districts that they wrote off earlier in the year. But it shouldn’t have taken Trump for Democrats to recognize that there was a possibility to compete for a House majority. It was always a challenge, but never impossible.
One of the main reasons Democrats downplayed their chances of taking back the House was that it served their own liberal ideological interests. If external forces were preventing Democrats from winning back a majority, there was no need to replace polarizing House Minority Leader Nancy Pelosi with a younger, more-moderate lawmaker. If gerrymandering was the main culprit for the party’s woes, there would be no pressure for President Obama to moderate his agenda. Rahm Emanuel won back the House in 2006 by recruiting an ideologically diverse slate of candidates, many of whom opposed gun control and immigration reform. But that’s ideological heresy for many Democrats these days, even if used in the service of winning GOP-leaning seats.
But it wouldn’t take culturally conservative positions for Democrats to compete across the country. Consider: There are 65 Republican-held House seats with Cook Political Report ratings of R+5 or less, meaning that in the past two elections, the GOP presidential candidate ran no more than 5 points better in those districts than his national average. Most of the seats are in the type of suburban areas where Democrats must be competitive to win the White House. They only needed to net fewer than half of them—30 seats in total—to regain control. Yet, as National Journal’s Kimberly Railey reported, Democrats never thought they had a chance in many of these GOP-leaning seats from the beginning, and they are now playing a desperate game of catch-up to recruit enough candidates before additional filing deadlines occur.
Under President Obama, Democrats decided that restoring their majority depended on rallying the base while downplaying the importance of swing, centrist voters. They bought into the myth that midterms, with lower turnout from Obama’s core coalition, were a lost cause for them. That meant they had all but written off the House, where the average congressional district tilts ever-so-slightly to the right. Democrats should have long ago realized that relying on Trump wasn’t their only path to a majority. Promoting a more-moderate message—one that’s tougher on national security and less wedded to government regulation—was a way to win that didn’t rely on the opposition imploding.
1. Even as the threat of significant down-ballot losses looms with Trump at the top of the ticket, there haven’t been many signs of a wave election—at least not yet. Republicans and Democrats are still tied in the generic ballot, according to a new Public Policy Polling automated national survey. In this week’s Marquette Law School poll, GOP Sen. Ron Johnson is now within 5 points of former Sen. Russ Feingold among Wisconsin voters—a much smaller deficit than in past polls. Even optimistic Democrats involved in Senate races are seeing tight polling in battleground races in New Hampshire, Ohio, and Pennsylvania—states the party must win to take control of the Senate.
The main threat that Trump poses to congressional Republicans isn’t that moderate Republican voters would suddenly support down-ballot Democrats in November. The bigger threat is that he’d spur Democratic turnout (in particular, Hispanic voters) and discourage Republican women and suburbanites from even showing up on Election Day. And those turnout projections are difficult to model this far out from Election Day, without knowing who the GOP nominee will be.
2. If Trump loses the Wisconsin primary Tuesday, it will be the first time since the Iowa caucuses that he lost a state—and was unable to point to any other victories the same day to counteract the bad publicity. With another two weeks before the New York primary, Trump will need to come up with another diversion to avoid losing momentum.
3. A key test of President Obama’s remaining juice with Democrats will come in Pennsylvania, where Democratic voters will determine their party’s Senate nominee against Sen. Pat Toomey. The party leadership is squarely behind Katie McGinty, a former chief of staff to Gov. Tom Wolf, over former Rep. Joe Sestak, who nearly defeated Toomey in 2010. Despite Sestak’s past political success, Democratic leaders have been wary of his personal quirkiness and unwillingness to run a traditional campaign the way that party leadership wants.
So even though Sestak leads in the primary polling, President Obama and Vice President Joe Biden decided to put their weight behind McGinty last week. McGinty quickly put up a television ad touting Obama’s support. Obama hasn’t had much success in transferring his own personal likability to down-ballot Democrats, however. The president’s endorsement of party-switching Sen. Arlen Specter did him no good in 2010, as Specter lost to Sestak in the Democratic primary. And with the presidential primary grabbing more headlines than the Senate race in Pennsylvania, it’s very possible Obama will strike out again in a big way.
Dan Pfeiffer, a former aide to President Obama, opened the latest episode of the new podcast he cohosts with some housekeeping news: The show’s original name, “Playing Politics,” was out the window.
“As it turns out, somehow I can’t believe we didn’t know this, but The Minneapolis Star-Tribune ed board has a podcast called ‘Playing Politics,’ which I’m sure is riveting, but because they beat us to the punch, we have a new name,” he said on the March 31 show. The podcast he does with former Obama speechwriter Jon Favreau is now, yes, “Keeping it 1600.”
It’s the latest sign that political podcasting is having a major growth spurt in the 2016 election cycle—unused names are hard to find.
The campaign season that began in earnest in 2015 has brought an explosion of new shows. And they’re helping to provide a counterweight to the Twitter-ization and breakneck speed of the political-news cycle that often leaves context and depth in the dust.
“The number of publishers that are producing political podcasts does point to a new trend, and it’s also what Americans are interested in talking about and hearing others talk about, and that’s what’s perfect for podcasts,” says Mark McCrery, CEO of Podtrac, which tracks the medium and connects advertisers with programs.
There are offerings from longstanding players in political journalism such as ABC News and CNN. NPR’s Politics Podcast launched in November and it’s currently the highest-ranking political show in iTunes (which largely bases its rankings on the number of new subscriptions).
National Journal launched its TwentySixteen podcast early last year. This election cycle has brought shows from The New Republic, the Huffington Post, Politico, the Scripps News Washington Bureau, and more. Newer outlets are getting involved too, such as Nate Silver’s FiveThirtyEight and The Federalist, a conservative Web publication. Favreau and Pfeiffer are on media mogul Bill Simmons’s recently launched podcast network.
Political podcasting has been well-established for years. But Todd Cochrane, the CEO of the podcasting-services company RawVoice, estimates that there are about 30 percent more politically oriented shows in the 2016 cycle than in 2012.
He says there are now roughly 5,000 political shows, with audiences ranging from just a few thousand per month to shows that have over 200,000 listeners per episode. A substantial number have ad sponsorship.
Many shows offer a way to look analytically at campaigns and cover far more than just the presidential horse race, though there’s plenty of that too. Podcasters are capitalizing on interest in the 2016 race to produce content that’s wider ranging.
The longstanding left-wing magazine The Nation launched its weekly “Start Making Sense” podcast last fall, and it features a mix of campaign and issue coverage.
“Our launch coincided with the magazine endorsing Bernie and with the rise of Trump, so we had an instant audience,” said Jon Wiener, the podcast host, who also teaches history at the University of California at Irvine.
On the right, The Federalist is riding the same wave with its daily podcast that launched a year ago to coincide with the White House race taking off. It’s one of several topics on the show.
“We try to offer a brand of smart talk and interviews on a wide variety of topics—not just politics, but culture, religion, and intellectual debates over the future of the Right,” said Ben Domenech, publisher of The Federalist, in an email.
One major new entry into the field is “The Axe Files,” an interview program hosted by David Axelrod, who was previously Obama’s top campaign strategist.
Bernie Sanders was the inaugural guest last fall, while Nancy Pelosi and several senators have also been on. But beyond politicians there are heavyweight political strategists, journalists, and even Joakim Noah of the Chicago Bulls.
Axelrod, a former reporter, has extracted news from his guests, and the interviews have bred spot stories on CNN—which is a partner in the venture with the Axelrod-founded Institute of Politics at the University of Chicago—and also National Journal, The Hill, Politico, and elsewhere.
But Axelrod also feels that the wide-ranging interviews, which feature a heavy dose of the guests’ biographies, provide an antidote to “soundbite” coverage. The show’s informal, conversational interview style is also used by Politico’s Glenn Thrush on his podcast and other shows.
Axelrod believes there’s an audience that’s hungry for alternatives to today’s go-go-go style of political coverage.
“People turn to podcasts for relief because they are bombarded with these bite-sized nuggets of information, pseudo-information that are often not in a larger context,” he told National Journal. “There’s definitely a market out there for this, and I do think it’s a reaction to the modern media environment.” The weekly podcast has been downloaded over 1.5 million times, Axelrod said.
The growth of political podcasts is part of the overall expansion of download-able, listen-at-your-leisure programing. Chris Bannon, an executive with the digital media company Midroll Media, notes that a laptop and a $200 microphone are enough to create a show.
Data from Edison Research, which tracks digital-media consumption, shows how podcasting is far from the niche market it was a decade ago, and how it has surged even within the past few years.
Around 35 million people in the U.S. over the age of 12 listened to a podcast within the last week, according to a survey conducted early this year, which is roughly twice the number in 2013. Monthly podcast listening is up 50 percent since 2012, their data shows.
Rick Klein, the political director of ABC News, says growing podcast consumption is one reason behind the launch of their weekly “Powerhouse Politics” show this year.
“We are always looking for ways to meet the audience where it wants to be met,” Klein said. He cohosts the show with ABC’s chief White House correspondent Jonathan Karl and analyst Matthew Dowd, but they have guests as well, like Ben Carson on the March 31 show.
Their show, too, has an informal banter that’s common in political podcasting. It was pioneered by Slate magazine’s weekly Political Gabfest. Slate’s show has been around for a decade and accurately describes itself as providing the “kind of informal and irreverent discussion Washington journalists have after hours over drinks.”
“John, Matthew, and I were buddies, we talk about politics all the time, and this seems like a great new way to continue that conversation and get smart people talking about it and get the audience engaged in it,” Klein told National Journal.
Political podcasts come in many forms. For instance, The Huffington Post’s “Candidate Confessional,” launched in January, features chats with losing political candidates.
Slate last year added to its stable with John Dickerson’s Whistlestop, which delves into key moments in past presidential campaigns, and more recently Trumpcast, in which Slate chairman Jacob Weisberg tries to make sense of Trump’s shocking rise. The Washington Post launched a weekly podcast on presidential history in January.
There’s more to come.
This month brings the launch of “Hard Nation,” a comedic political show from Earwolf, a subsidiary of Midroll that produces comedy podcasts. Bannon says the company is also exploring serious political talk shows.
And why not? The intersection of politics and podcasts is still evolving. “I wonder if political podcasting will see political ads,” Bannon said. “I’m wondering who is going to get their feet wet.”