The last time Merrick Garland fought Congress was over a racial discrimination case—and he lost

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In the mid-'80s, as a young lawyer at a big D.C. law firm, Merrick Garland helped represent the first black stenographer at the House of Representatives, who sued Congress for what she said was her racially-motivated firing.


Now Garland, who was nominated for a seat on the Supreme Court by President Obama last week, is locked in another battle with Congress. Senate Republicans have vowed not to vote on his nomination; he and the White House are starting a campaign to change their minds.

While most of Garland's legal career was in prosecution or defending corporate clients, his work representing Betty G. Browning, the stenographer, shows another side of the Court nominee.


Garland was placed on the Browning case pro bono as part of his work at Arnold & Porter, a law firm that is among the most elite in the industry. According to a questionnaire he filled out for his 1995 nomination to the D.C. Circuit Court of Appeals, where he is currently a judge, he took on several pro bono cases to help "disadvantaged individuals." He joined the firm in 1981 and became a partner there about four years later.

Browning, who was hired by the House of Representatives in 1974, was the only black person on the stenographer staff throughout her time there. Her job was to transcribe committee and subcommittee hearings.

According to Browning, her white supervisor would complain about her performance with no reason, and make derogatory comments about her in front of other employees. House officials said she was actually just a bad stenographer. The last straw came when Browning was assigned to transcribe a subcommittee hearing on “Organized Crime in the Hazardous Waste Disposal Industry,” on December 16, 1980. The transcript she produced had large gaps, as Browning herself admitted.

After she was fired the next year, Browning sued the House and her supervisors for racial discrimination. Garland signed onto the case.


Most of the legal debate dealt not with whether Browning actually faced discrimination, but instead with thorny constitutional issues about the independence of Congress. According to the Speech or Debate Clause of the Constitution, the executive and the judicial branches of the federal government are not allowed to question how Congress conducts its legislative process. “We never really reached classic racial discrimination issues,” Steven Ross, who represented the House in the Browning case, told me.

District court judge Thomas P. Jackson sided with Browning, saying that the Speech or Debate Clause didn’t apply to a stenographer job. But that decision was overruled by an appeals court, and the Supreme Court declined to hear the case.


The appeals court ruling in 1986—from the court that Garland now sits on—held that Congress could not be sued for alleged racial discrimination against employees like Browning whose duties were ''directly related to the due functioning of the legislative process.''

The ruling, and similar ones in other cases, helped convince Congress to set its own rules preventing racially discriminatory personnel decisions, Ross said.


While Ross didn’t specifically remember Garland’s work on the Browning case, he worked with him on other occasions and praised the nominee. “In my career, I’ve dealt with dozens and dozens of truly great lawyers, and many of them spend time pointing that out to you,” Ross said. “He doesn’t. He has been as down to earth as can be and has shown that you can be a great legal intellect and also a normal person.”

Garland went on to become a federal prosecutor and then an appeals court judge. It's not clear where Browning worked or went after her lawsuit failed—attempts to reach her were unsuccessful.


Casey Tolan is a National News Reporter for Fusion based in New York City.

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