During his close to 20 years as an appellate court judge, Merrick Brian Garland authored numerous opinions that showed deference to National Labor Relations Board decisions holding that employers committed unfair labor practices, says Allison Klausner, principal and government relations leader at Xerox HR Services, but employers shouldn't automatically jump to the conclusion that his nomination to the U.S. Supreme Court will be bad for benefit plans.

President Barack Obama Wednesday announced the nomination of Garland, chief judge of the DC Court of Appeals, to the U.S. Supreme Court following the death of Justice Antonin Scalia on Feb. 13.

President Barack Obama, right, and Vice PresidentJoe Biden, center, laugh during remarks by Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, following the announcement of his nomination for the Supreme Court in the Rose Garden of the White House in Washington, D.C., U.S., on Wednesday.[Image credit: Bloomberg]
SCOTUS pick
President Barack Obama, right, and Vice PresidentJoe Biden, center, laugh during remarks by Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, following the announcement of his nomination for the Supreme Court in the Rose Garden of the White House in Washington, D.C., U.S., on Wednesday.

[Image credit: Bloomberg]

Garland, 63, is considered a moderate who has support from both sides of the aisle and was a finalist for the first two Supreme Court vacancies Obama filled. Garland is “uniquely prepared to serve immediately” with a “sterling record,” Obama said Wednesday morning from the Rose Garden at the White House.

However, there are some arguments against Obama’s nomination.

Juanita Duggan, president and CEO of the National Federation of Independent Business, believes Garland to be a poor choice as a defender of business.

“Judge Garland has an extensive record and based on our initial examination we have grave concerns,” she said in a statement.

“A cursory examination of his record points to a judge who nearly always sides with regulators, labor unions and trial lawyers at the expense of small businesses. That’s very discouraging,” she said. “Small business has been under heavy pressure from the EPA, the DOL, the NLRB, and the rest of the alphabet soup of regulators that have expanded their power over the private sector.”

But benefit plan sponsors shouldn’t necessarily rush into defense mode with Obama’s choice, says Klausner. While during his close to 20 years as an appellate court judge, it is true that Chief Judge Garland authored numerous opinions that showed deference to NLRB decisions, holding that employers committed unfair labor practices, she says.

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"To evaluate his decisions as being pro-employer or anti-employer may be too simplistic.”

“However, Chief Judge Garland’s opinions may speak more to his views regarding the role and scope of an appellate court judge,” she believes. “Indeed, to evaluate his decisions as being pro-employer or anti-employer may be too simplistic.” Klausner notes that judges, particularly those sitting on an appeals court, decide cases based on a large variety of factors, including how a question is presented for review and the relative strength and weakness of those advocating on behalf of each party.

The president's move to fill the seat left vacant by Scalia, who died just over one month ago, comes as Senate Republicans have pledged to block any attempt to fill the spot before a new president is sworn in next January, although a number of cases with major implications for employers remain on the Supreme Court docket.

For example, Friedrichs v. Calif. Teachers Association involves whether public employees who are not members of the union can be required to pay a “fair share” or “agency” fee to cover the union’s costs to negotiate a contract that covers all (union and non-union) public employees. The plaintiffs in the Friedrichs case allege that the so-called agency fee rule violates their First Amendment rights, Klausner says. “Given that this case involves the First Amendment, and that Chief Judge Garland’s written opinions suggest that he takes a broad view of the First Amendment, if he is confirmed as a Supreme Court Justice, he may lean towards a finding in favor of the plaintiffs,” she says.

Other cases with implications for benefit plan sponsors include:

· Encino Motorcars, LLC v. Navarro – Whether “service advisers” employed at a car dealership are exempt from overtime compensation under FLSA.

· Tyson Foods, Inc. v. Bouaphakeo – Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under FLSA.

In announcing the nomination, Obama chided Republicans, demanding the Senate fulfill its responsibility to consider Garland and hold a timely vote on his nomination. To do anything else would be irresponsible, he said.

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“Working people need a government that works for them, not one that is ground to a halt by extremist special interests and the Senators who do their bidding.”

“Working people need a government that works for them, not one that is ground to a halt by extremist special interests and the Senators who do their bidding,” said Mary Kay Henry, president of Service Employees International Union. “Today, President Obama has done what the American people need by nominating Judge Garland to fill the vacant Supreme Court seat,” adding Garland has “shown that he respects the opinion of the NLRB that is charged with protecting workers’ right to join together in a union and bargain collectively, and he has upheld disclosure requirements to keep a check on the outsized influence ‘dark money’ has on our government.”

Klausner believes it’s possible Senate Republicans “may alter their current stance and sincerely take up the nomination and provide their advice to the president. It is possible that the Senate Republicans may be willing to consider Chief Judge Garland [because] the next president may be Hillary Clinton and her nominee could be more liberal than Garland.”

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