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With No Fanfare, Merrick Garland Returns To The Bench

There was no acknowledgment of Judge Merrick Garland's unsuccessful nomination to the US Supreme Court as he took the bench and heard arguments at the US Court of Appeals for the DC Circuit for the first time since early 2016.

Posted on January 18, 2017, at 1:04 p.m. ET

Nicholas Kamm / AFP / Getty Images

WASHINGTON — Judge Merrick Garland was back on the bench on Wednesday, donning his black robe and hearing arguments for the first time since his ultimately unsuccessful nomination to the US Supreme Court was announced in March 2016.

There was no acknowledgment of Garland's nomination and the political maelstrom that blocked him from confirmation as he entered the courtroom of the US Court of Appeals for the DC Circuit — the court he's served on since 1997 — on Wednesday morning. He walked in, surveyed the room, and sat down. Without a word, he signaled for the lawyer arguing the first case to begin.

From there, it was business as usual. Known as an active questioner on the bench, Garland dove in as lawyers argued three cases over the next three hours.

Garland stopped hearing cases after President Obama nominated him to the Supreme Court on March 16 to replace the late Justice Antonin Scalia. The last time that Garland presided over arguments was Feb. 8. Scalia died five days later.

Republicans announced their opposition to Obama filling Scalia's seat even before Garland was revealed as the nominee, arguing that it was improper for the president to chose a nominee in an election year. With Republicans in the majority, Garland never had a confirmation hearing before the Senate Judiciary Committee.

The courtroom on Wednesday featured a few reminders of Garland's unsuccessful nomination to the high court. Eugene Scalia, the son of the late justice, was in attendance. Scalia's law firm, Gibson, Dunn & Crutcher, was involved in one of the cases being argued.

Also in attendance was Todd Kim, the solicitor general for the District of Columbia, who, like Garland, saw his judicial nomination by Obama scuttled in the Senate. Kim was nominated to the DC Court of Appeals, the District's highest local court, but never had a hearing either.

Garland heard three cases on Wednesday, involving a union issue, public records access, and the rights of a child removed from the custody of a parent. Also on the panel were judges Brett Kavanaugh and Sri Srinivasan, both considered contenders for a Supreme Court nomination under a Republican and Democratic president, respectively, although Kavanaugh is not on President-elect Donald Trump's public shortlist to replace Scalia.

There isn't a legal requirement that sitting judges give up their dockets once they become Supreme Court nominees, but it has been the custom for years. The court announced shortly after Garland's nomination that he would not handle any cases while his nomination was pending.

In the months that followed, Garland never spoke publicly about his nomination or the controversy that surrounded it. He made a handful of public appearances to speak to lawyers and students, but always stuck to noncontroversial subjects.

Although he wasn't handling cases while his nomination was pending, Garland was — and still is — the chief judge of the DC Circuit, and kept up with the administrative duties that are part of that job. He's also a member of the Judicial Conference of the United States, the body of federal judges from across the country who make policy for the court system.

The Senate returned Garland's Supreme Court nomination to the White House at the start of the new session in January. He's now back in rotation to be assigned to cases under the normal process.

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