WASHINGTON — President-elect Joe Biden intends to nominate Judge Merrick Garland — former president Obama’s failed Supreme Court nominee — as the next attorney general, multiple news outlets reported Wednesday.
Biden’s selection is a return to the national spotlight for Garland, whose nomination to the Supreme Court in 2016 was famously blocked by the Republican-controlled Senate. The announcement comes after Democrats won two Senate seats in Georgia at Tuesday’s election, giving them control of the chamber. Garland’s nomination to head the Justice Department will be made official after Biden takes office on Jan. 20.
A spokesperson for Biden’s transition team and Garland's chambers did not immediately respond to a request for comment.
Garland is currently a judge on the powerful US Court of Appeals for the DC Circuit. With Democrats taking over the Senate, Biden will have a much easier time replacing him on the court, which is the main venue for fights over federal government actions and executive power and has long been a springboard to the Supreme Court.
Garland was at the center of a major controversy in 2016, when Senate Majority Leader Mitch McConnell and other Republican senators blocked his nomination to the Supreme Court, saying that presidents should not be able to appoint justices during an election year. However, Republicans switched their positions in November 2020 when they confirmed Trump’s Supreme Court nominee Amy Coney Barrett to the Supreme Court. (McConnell claimed the Garland case was different because different parties controlled the White House and Senate at the time.)
Garland is a Justice Department veteran, ping-ponging for decades between the department and private practice before his nomination to the DC Circuit in 1997. He served as a federal prosecutor in Washington, DC, in the early 1990s and as a senior official in the DOJ Criminal Division before becoming principal associate deputy attorney general in 1994. He oversaw the department's investigation into the Oklahoma City bombing in 1995, which he has described as among the most important work of his career.
Garland had a solidly left-leaning record on the bench, but was no liberal firebrand — he wasn't known for using his perch on an influential federal appeals court to stake out strong stances on hot-button issues like some liberal and conservative judges have done. That makes it hard to predict where he'll focus his energies as attorney general, in contrast to some of his predecessors; Jeff Sessions, for instance, immediately fulfilled expectations that he'd press policies that were anti-immigration, pro-police, and friendly to religious conservatives as Trump's first attorney general.
Biden chose Garland for the position over other notable contenders including former Alabama Sen. Doug Jones and Obama’s deputy attorney general Sally Yates. Yates served as acting attorney general for the first 10 days of the Trump administration before the president fired her for ordering Justice Department lawyers not to defend his travel ban.
As Obama's Supreme Court nominee, Garland drew criticism from some liberals for his record on the DC Circuit when it came to cases involving the criminal justice system. A 2010 analysis of his cases by SCOTUSblog concluded that he "rarely votes in favor of criminal defendants' appeals of their convictions." In 2016, the New York Times found that, as a judge, Garland sided with law enforcement over defendants in 10 out of 14 cases the outlet examined. This may arise as an issue for civil rights leaders who, during a meeting with Biden in December, pushed the president-elect to pick a racial justice–minded attorney general.
Multiple news outlets also reported Wednesday that the president-elect would soon announce a slate of other top level Justice Department nominees that include former department officials with extensive civil rights experience. Biden intends to nominate Lisa Monaco as deputy attorney general, Vanita Gupta as associate attorney general, and Kristen Clarke as the head of the Civil Rights Division, according to NPR. Monaco served as Obama's top counterterrorism advisor and led the DOJ National Security Division. Gupta is president of the Leadership Conference on Civil and Human Rights and ran the Civil Rights Division under Obama; she would be the first BIPOC woman to serve as the department's number three official. Clarke is president of the National Lawyers’ Committee for Civil Rights Under Law and a former federal prosecutor in the Civil Rights Division.
Garland never publicly confirmed that he was under consideration, but there were clues — last month and as recently as this week, the court released opinions in several cases where Garland had heard arguments as a member of the three-judge panel but recused from participating in the decision without any explanation, including several cases involving the Justice Department. Garland didn't participate in cases while his Supreme Court nomination was pending in 2016.
A major challenge for Garland leading the Justice Department will be to figure out how to handle the numerous active court cases in which the department is defending Trump administration policies that Democrats oppose. The Supreme Court is poised to rule in the new year on a challenge to the Affordable Care Act brought by the Texas attorney general’s office that the Trump administration backed, and left unresolved the lawfulness of Trump's plan to exclude undocumented immigrants from census data used to decide how many seats in Congress each state will receive.
In the lower courts, there are pending cases challenging a host of executive actions taken by Trump and his administration, including ramped up immigration enforcement, environmental protection rollbacks, restrictions on federal funding to groups that provide abortion, a ban on racial sensitivity and diversity training for federal employees, and changes to US Postal Services policies blamed for mail delays this year. There are also pending cases where the Justice Department has backed Trump’s opposition to efforts by Democrats in Congress and state prosecutors in New York to gain access to his personal financial records.
Former attorney general Bill Barr’s tenure was marked by rare public pushback from career prosecutors to decisions made by Barr and other senior political appointees that benefitted Trump and his allies, from intervening in criminal prosecutions stemming from the Mueller probe to easing limits on Justice Department activity before and after an election, a move that served to underscore Trump’s baseless voter fraud claims. Trump used Twitter to publicly urge the Justice Department to investigate and prosecute his political rivals.
Another question for Garland is whether he will pursue investigations into Trump, his family, and his political allies. NBC News reported in November that Biden did not want his administration to get weighed down by probes into Trump and his administration.
In an interview with CNN this month, Biden said he would respect the department’s independence.
“I'm not going to be saying, 'Go prosecute A, B, or C.' I'm not going to be telling them. That's not the role. It's not my Justice Department, it's the people's Justice Department. So the persons or person I pick to run that department are going to be people who are going to have the independent capacity to decide who gets prosecuted, who doesn't,” Biden said.
Trump had a fraught relationship with the Justice Department from the start. Just over a week after taking office, he fired then–acting attorney general Sally Yates when she directed government attorneys to not defend the first iteration of the president’s travel ban executive order in court. He tapped Jeff Sessions, then a Republican senator from Alabama and an early backer of Trump’s candidacy, to serve as his first attorney general, only to denounce Sessions for recusing from any involvement in the investigation into Russian interference in the 2016 election.
Trump repeatedly and publicly berated Sessions for the recusal decision over the next two years, ultimately forcing Sessions to resign shortly after the midterm election in November 2018.
Although Sessions lost Trump’s favor, he and his successors — Matthew Whitaker, who served as acting attorney general for four months, and Barr — were integral to Trump carrying out key elements of his political agenda. In and out of court, they backed Trump’s hardline immigration policies, supported efforts to roll back legal protections for LGBTQ individuals, and scaled back or ended Obama-era efforts to tackle police misconduct.
Under Barr, the Justice Department intervened in politically sensitive cases to the benefit of Trump’s allies, and Barr faced a public revolt from attorneys currently serving in the department. Barr was involved in a brief but dramatic showdown over the summer with Geoffrey Berman, then the US attorney in Manhattan, over Barr’s efforts to remove Berman from office.
Earlier this year, DOJ took the unusual step of trying to take over Trump’s defense against a private defamation lawsuit brought by the writer E. Jean Carroll who accused Trump of sexual assault. Biden on the campaign trail criticized DOJ’s effort to intervene in Carroll’s case, saying Trump was trying to turn DOJ into his “own law firm.” A federal judge in New York denied the department’s effort to get involved in the Carroll case, and the department is appealing that decision.
“Can you remember any Republican president going out there, or former Democratic president, 'Go find that guy and prosecute him'? You ever hear that? Or, by the way, I'm being sued because a woman's accused me of rape. Represent me. Represent me. ... What's that all about? What is that about?” Biden said during a televised town hall in October.
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Sarah Mimms contributed to this story.