President-Elect Joe Biden announced on Thursday morning his intention to nominate D.C. Circuit Court of Appeals Chief Justice Merrick Garland — best known as President Barack Obama’s pick for Supreme Court Justice Antonin Scalia’s seat in 2016, although Republicans refused to consider his nomination before the 2016 election — to be the next attorney general of the United States. (The nomination had been leaked Wednesday morning but given that it was nearly immediately followed by a violent mob invasion of the Capitol, encouraged by the current president to disrupt the orderly transition of power to the duly elected president-elect, one might have missed it.)
The choice of Garland is a good indication — both for better and for worse — of what can be expected of a Biden administration: competent governance that is more moderate than the progressive wing of the Democratic Party would prefer. But if there is any silver lining from progressives’ perspective, it is that it seems to indicate that Biden is less convinced about his ability to work with Senate Republicans than his rhetoric sometimes suggests.
After all, it is assuredly not a coincidence that Garland’s nomination was made clear only after the Democratic Party had apparently regained control of the Senate by sweeping Georgia’s Senate runoffs; the race for Republican Sen. Kelly Loeffler’s seat was called in favor of Raphael Warnock on Tuesday night, and the close race for the seat held until recently by Republican Sen. David Perdue was trending well in favor of challenger Jon Ossoff before it was called in Ossoff’s favor during the violence at the Capitol.
The clear inference from that timing is that Garland was Biden’s first choice but that he wasn’t willing to nominate him unless it was clear that a nominee for Garland’s seat on the country’s second most powerful court could be confirmed. With Sen. Mitch McConnell, R-Ky., about to be the minority leader, that is now likely instead of improbable; after all, it was McConnell who had prevented Garland’s nomination to the Supreme Court from coming to the floor in 2016, and he had committed only to hold votes on Biden’s Cabinet nominees (and not promised to confirm them).
Garland should’ve been picked if he was the best choice on the merits, and here there are real concerns.
It also seems highly likely that Biden was influenced by Garland’s Supreme Court nomination: Giving Garland the nod for attorney general is understandable, both as a reward to Garland for enduring public disappointment and humiliation in service to the Obama administration’s agenda and as a way to troll McConnell, who has lost his power to stop Garland’s confirmation.
That effort to right a previous wrong to Garland is understandable but not necessarily wise: McConnell got to fill Scalia’s seat with arch-conservative Neil Gorsuch, then 49, and having Garland serve a couple of years as Biden’s attorney general is a revenge with which McConnell can presumably live quite comfortably. And while one can sympathize with Garland’s being so close to a lifelong goal and then not even getting a fair hearing, he still had a life-tenured position on the most powerful federal circuit court. Nobody is owed a seat on the Supreme Court; Garland didn’t need to be made whole.
He should have been chosen as Biden’s attorney general if he was the best choice on the merits, and here there are real concerns.
As many liberal skeptics noted when he was a Obama’s Supreme Court nominee, Garland is a former prosecutor whose record on civil liberties is particularly concerning; his embrace of “tough on crime” policies may have represented the elite Beltway consensus in the ’80s and ’90s, but it wasn’t intellectually defensible then, and it certainly isn’t in retrospect. The American Civil Liberties Union’s comprehensive evaluation of his circuit court tenure found Garland to be a careful craftsman with a fairly liberal record on issues like civil rights but a conservative record on civil liberties. According to the report, Garland “very rarely ruled in favor of defendants in Fourth Amendment cases,” and his “notable sentencing decisions similarly demonstrate a pro-prosecution perspective.”
Whatever his faults, Garland will certainly be a massive improvement on his immediate predecessors
Admittedly, Democratic elites have generally moved to the left on civil liberties in the last decade as the horrible costs of mass incarceration and police overreach become increasingly manifest (or, at least, increasingly harder to ignore than they had before), and it’s possible that Garland has reconsidered some of his positions. But after a summer of robust protests against police violence against Black people, it would be preferable to have a leader rather than a follower on these issues as attorney general.
The two other people reported to be serious candidates for the position — former Sen. Doug Jones, D-Ala., and former Deputy Attorney General Sally Yates — are also competent people, and both have better records on civil liberties issues. But with Garland’s nomination a done deal, at a minimum, strong proponents of criminal justice reform in the Senate — like Cory Booker, D-N.J. — should make a point of asking Garland tough and detailed questions about his record on civil liberties issues.
Whatever his faults, though, Garland will certainly be a massive improvement on his immediate predecessors. Former Sen. Jeff Sessions, R-Ala., was a malicious authoritarian whom a Republican-controlled Senate had previously considered too racist to be a federal judge. William Barr, who seemed to conceive of his role as being Trump’s personal attorney, was somehow a step down even from Sessions.
Garland, a very able, widely respected judge, will bring some much-needed professionalism to a Justice Department that has been left a total shambles by Trump’s attorneys general — and after four years of Trump appointees, quiet, unexciting proficiency is not without its virtues.
Ultimately, Garland is the Joe Biden of nominees, really: bland and competent without being particularly interesting or progressive, all of which is infinitely preferable to Donald Trump and his minions but behind the curve of the Democratic coalition ideologically. But at least the nomination and the timing suggest that Biden does recognize that McConnell is truly an obstacle to his agenda, not a potential partner.
Biden making Merrick Garland attorney general isn’t the best idea. It also isn’t the worst one. The British Journal Editors and Wire Services/ NBC News.