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Antitrust Expert Michael Sohn, Garland ‘Forges Consensus’

By Jeffery Leon

April 15, 2016

As the D.C. Bar continues its coverage of the nomination process for Judge Merrick Garland, we will be profiling Bar members who have known or have worked with Garland at some point during his decades-long career to provide insight on the U.S. Supreme Court nominee.

Michael Sohn is an attorney at Davis Polk & Wardwell LLP whose practice focuses on the antitrust aspects of mergers and acquisitions. He previously served as general counsel for the Federal Trade Commission and led the antitrust practice at Arnold & Porter LLP. While at the latter position, he worked closely with Judge Garland. The two also have personal ties—Judge Garland officiated Sohn's wedding.

Tell us a bit more about how you know Judge Garland.

I first met Merrick when he joined Arnold & Porter around 1981. I knew him and worked with him throughout both periods he was at [the firm]. He joined in 1981, became a partner in 1985, left around 1989 to join the U.S. Attorney's Office, and then came back briefly in 1992. We stayed in touch over the years. It's been a long friendship.

What is Judge Garland like as a person and as a professional?

It's hard to know where to start. He's a unique individual. He is almost always the brightest person in the room, but you would never learn that from his affect. From the way he listens to other people, he sincerely thinks about what they are saying. He's a very careful, decent human being. There are a lot of smart people in this town, and Merrick may be among the smartest, but what I think about him is his decency. He has a willingness, whether in social or professional settings, to think about who he's dealing with, what they're saying, and the extent to which he can then reflect on that and feed back his own thoughts without coming across as pompous in any respect.

What moment or experience you've had with him that stands out in memory?

We worked on a number of antitrust cases together when he was at the firm. It was extraordinary how at a relatively early point in his career he mastered a very complicated area. But the thing that stands out the most for me is a case he worked on [that] ended up in the Supreme Court involving then Arnold & Porter client State Farm, the nation's largest automobile insurer. They had an interest in auto safety regulation; as an automobile insurer they were basically on the side of the consumer. The fewer accidents that happen, the fewer claims they pay out. They were instrumental, with the help of my then law firm, in causing the Department of Transportation to pass the first passive restraint requirement in automobiles. That ruling had been promulgated but not implemented when a new administration came in and decided that it didn't want to go forward with that regulation, and State Farm asked us to challenge the reversal.

Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance Company was a precedent-setting case decided by the Supreme Court in 1983. At this time Merrick had been in the firm for about two years, so he's had some clerkships, but he carefully helped us think through what the arguments for that case should be. We had an inkling from the start that it would go to the Supreme Court because there wasn't much precedent around what is the standard of review when an agency decides to reverse itself and not promulgate a regulation. With his discipline, careful mind, and instinct for consensus, we crafted four or five different arguments to present to the Supreme Court, hoping that one or more of them would create a consensus on the Court. That was a significant part, a team effort, and Merrick's intellect and his desire to find a way to bring judges with disparate philosophies to agreement was a driving force in our success.

Merrick forges consensus. In this case he wasn't a judge, but he was thoughtful about the arguments even though there were different philosophies on the Supreme Court. That was a moment that stands out for me just working with him on a case. And seeing how his mind worked and how he worked as an advocate.

Any additional thoughts about him?

What you've read about him is absolutely right. He had a brilliant future at Arnold & Porter. He made partner in record time, would have gone straight to the top of that firm and would have led the firm at some point. He would have succeeded enormously beyond his initial partnership, but he chose a different path. He did it because he wanted to be involved in public service, and it was a great move for him.

More D.C. Bar Members on Judge Garland

Jamie Gorelick, former D.C. Bar president and partner at WilmerHale LLP, spoke about her insights into Judge Garland from their college days at Harvard to their time together at the Office of the Deputy Attorney General.

James Sandman, former Bar president and current president of the Legal Services Corporation, talked about his experiences working alongside Judge Garland at Arnold & Porter LLP.