Offering an olive branch to Republicans, President-elect Joe Biden has nominated Merrick Garland, the centrist federal judge whom Republicans thwarted as Barack Obama’s 2016 Supreme Court pick, for attorney general.
The surprise choice of Garland reflects what the Biden team believes a post-Trump America needs at the Justice Department: a consensus-minded institutionalist, to reverse the damage done to the department by Trump loyalist Bill Barr.
“Merrick is just what the department needs right now,” said a source who knows Garland. The source compared Garland to Edward Levi, Gerald Ford’s choice for attorney general in the wake of Watergate.
But that perspective clashes with an alternative viewpoint from progressives about the needs of justice in 2021, not least because Garland will be unlikely to prosecute Donald Trump when his presidency—and legal immunity—ends. Shortly before Garland’s announcement, Trump incited a riot at the Capitol, where thousands of his supporters fought with police and breached the building itself to demand that the loser of the election be recognized as the winner.
“We need more than restoring, we need transformation,” said Karen Greenberg, the director of the Center on National Security at Fordham University Law School. “This is an appointment that signals a middle of the road stance that will surely disappoint progressives and that puts in question at the outset the kind of strong accountability measures that will be needed not just against Trump but key leaders of his administration.”
Another choice, the former acting Attorney General Sally Yates, whom Trump fired over her objection to Trump’s 2017 Muslim ban, could have been seen by Republicans as too polarizing, the source said.
Like the centrist Garland, Levi garnered respect in the Ford administration and afterward for the inability of observers to perceive his political persuasion. An obituary for Levi, who passed away in 2000, noted that the premiere conservative legal mind, Supreme Court Justice Antonin Scalia, praised Levi for “a rare intellectuality and a level of integrity such as there could never be any doubt about his honesty, forthrightness or truthfulness.”
One source familiar with the Garland selection noted that the judge, as a senior department official in the '90s, helped prosecute Timothy McVeigh, the white supremacist who murdered 168 in what was the single deadliest act of pre-9/11 terrorism on American soil. As an appellate judge after 9/11, as Charlie Savage of The New York Times noted when Garland was Barack Obama’s thwarted choice for a Supreme Court pick, Garland typically sided with the government in cases that kept post-9/11 terrorism detainees locked away, often despite flimsy or absent evidence.
“The Biden-Harris administration has shown a desire to move past the post-9/11 era, and that reflects the desire of the country to move past the post-9/11 era. But for that to happen, we first need to grapple with the past, including closing Guantanamo, ensuring accountability for torture, and generally thinking more broadly and creatively about these issues,” said Wells Dixon of the Center for Constitutional Rights, who often litigated habeas corpus cases on behalf of post-9/11 detainees.
“What Merrick Garland’s nomination looks like is a consolation prize for the fact that the Obama administration wasn’t able to seat him on the Supreme Court, rather than a nominee who is going to move the Justice Department forward in more progressive ways, ways, frankly, that the country is demanding.”
Below Garland, the senior ranks of the Justice Department will be filled by two prominent veterans of the Obama administration.
Biden will tap Lisa Monaco for deputy attorney general, elevating one of the most important counterterrorism and homeland-security figures on Obama’s National Security Council. Monaco in 2014 also served as coordinator of the response effort to the Ebola outbreak, experience that will set her up to aid the administration’s response to COVID-19.
And as associate attorney general, Biden will tap Vanita Gupta, who led the Obama Justice Department’s civil-rights division. Gupta spearheaded the Justice Department’s investigations of police racism in Ferguson, Baltimore, and Chicago, and currently heads the Leadership Conference on Civil and Human Rights. Her nomination is historic, as no woman of color has previously served as the department’s third senior-most official.
For the civil rights division, Biden has tapped Kristen Clarke, who currently runs the National Lawyers’ Committee for Civil Rights Under Law and was a civil-rights-division attorney during the Bush administration. According to her official biography, Clarke used to work for the NAACP Legal Defense and Educational Fund and helmed the civil-rights bureau of the attorney general’s office in New York state.
Notwithstanding her dissatisfaction with Garland, Greenberg said the three subordinate appointments represent “good signs that there will be strong progress in defense of civil liberties and constitutional principles that are sorely in need of attention.”
For his part, Dixon said, “Why is Vanita Gupta not the attorney general nominee? Why is the Biden-Harris administration not selecting more progressive nominees? Have they not learned from the mistakes of the past?”
Prior to Democrats’ stunning victories in two U.S. Senate run-offs in Georgia, which will hand them control of the chamber, Garland was not seen as an especially viable pick for the attorney general post. That’s not because he couldn’t be confirmed in a GOP-held Senate—he is expected to earn at least several GOP votes—but because of the high-profile court vacancy he would leave behind. Many Democrats scoffed at the prospect of trying to fill a vacancy on the nation’s second-highest court if Sen. Mitch McConnell (R-KY) remained in control of the chamber.
But as the Biden team dragged out its announcement for attorney general, some Democrats on Capitol Hill suspected that the president-elect may have been watching to see how the Georgia races would shake out. That the Garland news broke hours after Raphael Warnock’s victory—and with Jon Ossoff’s victory imminent—seemingly confirmed it.
There is also a sense among some Hill Democrats that Garland’s nomination would present an early opportunity to appoint a much younger liberal to replace the 68-year old judge and serve on the D.C. circuit bench for decades.