Senators Likely to Avoid Gambling Topics When Questioning Merrick Garland for Top DOJ Job

Posted on: February 8, 2021, 12:15h.

Last updated on: February 8, 2021, 12:15h.

Attorney General nominee Merrick Garland will likely not get grilled about gaming law during upcoming Senate confirmation hearings, legal analysts predict. But they add that President Joe Biden’s pick to lead the Department of Justice (DOJ) overall is a bit of an unknown quantity when it comes to commercial and tribal gaming cases.

Senators likely to avoid gambling topics when questioning Merrick Garland for top DOJ job
Senators likely to avoid gambling topics when questioning Merrick Garland for top DOJ job
Merrick Garland, center, is shown with then Vice President Joe Biden, after the judge was nominated for a Supreme Court vacancy in 2016. His nomination was never voted upon by the Senate and now he has been nominated for Attorney General by President Biden. (Image: Chip Somodevilla/Getty Images)

For several years, Garland sat on the US Court of Appeals for the DC Circuit and earlier worked at the DOJ, often on high-profile cases. But his votes and rulings do not reveal much about gambling issues.

“Judge Garland was involved in many cases that involved casino companies, but none that dealt with the federal issues surrounding federal gambling laws,” Anthony Cabot, UNLV Boyd School of Law’s Distinguished Fellow of Gaming Law, told about Garland’s tenure.

“The cases mainly focused on matters concerning the National Labor Relations Board (NLRB) and the interaction between casino companies and their employees,” Cabot explained. “… Judge Garland most often sided with employees against the casinos.”

But the decisions do not reveal any insights on gaming or sports betting issues and these topics are likely not to be addressed by Senators in hearings, Cabot said.

Robert Jarvis, a professor at Nova Southeastern University’s Shepard Broad College of Law, basically agreed.

“I would be surprised if Garland was asked about gambling at his confirmation,” Jarvis said. “Of course, Senators sometimes ask unexpected questions, so gambling is not entirely off the table.”

“But I would rate the chances of a gambling question as very, very small,” Jarvis told

One possible question could relate to how Garland was on the panel of DC Circuit judges which decided in 2007 San Manuel Indian Bingo and Casino vs. NLRB. The judges ruled in favor of the NLRB. But his answer about the case may not reveal much.

“I think his willingness to join the decision, which was unanimous, really doesn’t tell us anything about his views on gambling because that case, while it involved an Indian casino, really focused on its workers, who primarily were non-Indian,” Jarvis said.

In two other labor law cases, both of which involved non-Indian casinos, he also ruled for the NLRB, Jarvis added. These were: Bally’s Park Place vs. NLRB, and Ark Las Vegas Restaurant Corp. vs. NLRB. Both dealt with union organizing.

Prep for Wire Act, Online Gambling Questions, Jarvis Says

Still, it is possible a gambling topic could be brought up in the hearings. “If I was prepping him, I would tell him to be ready to discuss two gambling subjects…,” Jarvis said.

One is the Wire Act/New Hampshire Lottery case that was recently decided by the First Circuit Court of Appeals. The second topic is enforcement of online gambling rules and the Unlawful Internet Gambling Enforcement Act.

Many legal observers believe the controversy over the Wire Act is now generally closed. Last month, the First Circuit ruled in favor of the New Hampshire Lottery in a case involving the Wire Act. The DOJ tried to get the Wire Act expanded basically to all forms of betting.

Questions on still other gaming topics are unlikely.

“I don’t see him being asked about sports betting — it’s been nearly three years since the US Supreme Court decided Murphy vs. National Collegiate Athletic Association and the subject now is really a state law issue,” Jarvis said. “And I don’t see him being asked about Indian gambling. That’s just not high on any Senator’s list of priorities at the moment.”

Garland: Largely Unknown to Indian Country

As far as tribal casinos, Gary Pitchlynn, who practices tribal-related gaming law in Oklahoma and also teaches at the University of Oklahoma College of Law, told “there is a general tribal sense” that Biden wants to “uphold treaties and defend tribal sovereignty.

“His chosen Attorney General will follow his lead and not become just another Indian fighter,” Pitchlynn added. But still much is undiscovered about Garland in this area.

“In large part, I would say he is somewhat of an unknown to Indian country,” Pitchlynn said.

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