Chief Judge Merrick Garland, of the U.S. Court of Appeals for the District of Columbia Circuit. Credit: Diego M. Radzinschi / NLJ

If the young Merrick Garland had not edited a law review article written by the late U.S. Supreme Court Justice William Brennan Jr. in 1977, he might not have clerked for Brennan and might have pursued a different path than the one that led him to be an appellate judge and Supreme Court nominee.

“Editing your article was enjoyable and exciting, and I would look forward to the prospect of clerking for an even more rewarding experience,” Garland wrote in a May 1977 application letter to Brennan, the liberal justice who died in 1997. The article was on the subject of state constitutions and the protection of individual rights. Garland, then at Harvard Law School, was articles editor for the law review.

Brennan wrote back swiftly, telling Garland, “I am delighted to have your application … Frankly, I was hoping you would apply. I am more than happy to offer you a clerkship with me for the 1978 term after you have successfully completed your clerkship with Judge [Henry] Friendly.” There was no indication Brennan wanted or needed to interview Garland as part of the hiring process.

The warm letters were among a section of Brennan's papers at the Library of Congress that were closed to the public until last year, the 20th anniversary of his death.

In April 2016, when Garland—now chief judge of the U.S. Court of Appeals for the D.C. Circuit—was a nominee for a seat on the U.S. Supreme Court, journalists tried to unearth his correspondence with Brennan.

But Brennan's executors declared the file off limits because of the 20th anniversary requirement. As mentioned last week in Supreme Court Brief, the anniversary came and went last July apparently without anyone mining the papers for information until recently. The Republican-led Senate did not act on Garland's nomination, which expired January 3, 2017, with the end of the 114th Congress.

The Garland file also includes Brennan's 1995 letter to President Bill Clinton urging him to consider Garland as a nominee to the D.C. Circuit. That letter, which was made public by the Clinton Presidential Library when Garland was still a Supreme Court nominee in 2016, praised Garland as “a person of exceptional talent and great personal integrity.” Brennan also wrote, “Ordinarily I would not inject myself into the judicial nomination process, but Merrick is a special case.”

After Garland's clerkship ended in 1979, Brennan also wrote letters of recommendation to then-deputy attorney general Benjamin Civiletti and the vice president's counsel Michael Berman. From 1979 to 1981, Garland served as a special assistant to the attorney general.

The file also contains the resume Garland submitted to Brennan, including his grades at Harvard Law School from 1974 to 1977. He received A+ grades for Constitutional Law, Federal Courts and Advanced Antitrust, an A in Criminal Law, and an A- in Civil Procedure. His lowest grade was a B in Due Process.

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