President-elect Joseph R. Biden Jr. plans to appoint Judge Merrick Garland, whose Republican appointment to the Supreme Court was blocked in 2016, as Attorney General, placing the task of repairing a besieged Department of Justice in the hands of a centrist judge, according to a person familiar with the matter.
If confirmed, Judge Garland, who at times disappointed liberals with his decisions, would inherit a department that has become more politicized under President Trump than at any time since Watergate. Judge Garland will face embarrassing decisions on civil rights issues that have troubled the country this year, whether to investigate Trump and his administration and how to proceed with a tax investigation of Biden’s son.
Biden’s choice reflects his respect for Garland’s reputation as a centrist and his belief that he can restore the Department of Justice’s independence and inspire a deeply demoralized workforce that the Trump administration has often treated as an insurgent enemy to be dominated – qualities that he prioritized in relation to requests from progressive groups for the country’s chief police officer to be a woman or a person of color.
The appointment ended weeks of deliberation by Biden, who struggled to make a decision while considering who could fill a position he was convinced would have a disproportionate role in his presidency. Biden’s nominations are expected to receive broad confirmation, as Democrats look set to take control of the Senate.
Biden, who for a long time was the most important Democrat on the Senate Judiciary Committee and chaired him from 1987 to 1995, said by advisers that he has long pondered what makes a successful attorney general and pressured himself to make the choice certain. External groups also pressured him during the transition to nominate a non-white person who would take a much more confrontational position with law enforcement officials.
Several civil rights groups – including the NAACP, the National Urban League and civil rights leaders like Rev. Al Sharpton and – met with Biden last month to pressure the elected president to fill the post of attorney general and other offices. high-ranking positions with several nominees.
Since then, progressive groups have flooded Biden and his transition team with phone calls and notes, asking him to nominate an attorney general with a progressive record in matters of race and policing, according to several people familiar with evangelism. They argued that race, public safety and equality would be among the most important issues facing the Department of Justice
The choice of Garland, a white man with a history of favoring law enforcement for people accused of crimes, signaled to some progressives that his concerns were dismissed.
Biden also plans to nominate Lisa Monaco, former President Barack Obama’s internal security adviser, as deputy attorney general; Vanita Gupta, head of the department’s civil rights division under Obama, as number 3; and Kristen Clarke, a civil rights attorney, as deputy attorney general for civil rights, who must be a key focus of the Biden department.
Judge Garland was initially considered a long shot for the attorney general, in part because he is seen as politically moderate. In closed cases involving criminal law, he is significantly more likely to support the police and prosecutors in relation to people accused of crimes than other Democratic nominees. He was also inclined to submit cases of detainees who oppose state security powers to individual rights to the government in Guantánamo.
In addition, judges are only occasionally elevated directly to the position. The last was Judge Michael Mukasey, of the Federal District Court, appointed by George W. Bush to head the Department of Justice in 2007.
Biden also said he considered Sally Yates, the former deputy attorney general in the last years of the Obama administration; Doug Jones, the former Alabama senator; and Deval Patrick, the former governor of Massachusetts who ran for the Democratic presidential nomination briefly.
Judge Garland will have to rely on a Department of Justice accused of politicization over Trump’s efforts to influence investigations and former attorney general William P. Barr’s willingness to serve his political agenda. Obama-era Justice Department officials have asked the Biden government to strengthen the department’s independence from politics, and Judge Garland will also have to deal with the demands of some Democrats to investigate Trump.
Chaos in Washington DC
The decision to appoint Judge Garland seemed similar to the one Gerald R. Ford made after the Watergate scandal. Ford appointed Edward H. Levi, a university president whose political tendencies were unclear, to take office and restore the Department of Justice’s credibility. Later, Democrats and Republicans praised Levi’s ability to repair the department in an apolitical manner.
Judge Garland is likely to face pressure to also try to shift the department’s priorities from the Trump administration’s focus on immigration and violent crime to issues that Democrats typically prioritize, such as policing reviews and voting rights. But Judge Garland will also have to make decisions about how to handle the tax investigation of Biden’s son Hunter. Republicans, still irritated by the investigation of Trump’s campaign ties to Russia, asked the Justice Department to appoint a special lawyer to investigate the matter.
Mr. Garland, judge of the United States Court of Appeals for the District of Columbia Circuit, was appointed by Barack Obama in 2016 to fill the post left on the Supreme Court with the death of Antonin Scalia. Although the nomination discouraged some liberals, Senate Republicans – led by majority leader Mitch McConnell – refused to vote for his nomination, saying it should not be filled in an election year.
Finally, President Trump filled the vacancy with Judge Neil Gorsuch, a conservative along the lines of Judge Scalia.
Judge Garland’s career was dramatically affected by the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people. Garland, a Justice Department official at the time, played a direct role in the Clinton administration’s response.
President Bill Clinton appointed Judge Garland to the United States Court of Appeals for the DC Circuit in 1997, and he served as its chief judge from 2013 to February 2020. Although the court is often considered the second most country, after the Supreme Court, its idiosyncratic agenda is dominated by lawsuits related to regulatory agencies and tends to include few important controversies on social issues.
In court, Judge Garland received praise from across the political spectrum for the exceptional quality of his views, which are considered models of the legal profession – methodically substantiated, clear, attentive to precedents and closely linked to the language of the relevant statutes and regulations.
Court President John G. Roberts Jr., who served on the appeals court with Judge Garland, said he has high regard for his former colleagues.
“Whenever Judge Garland disagrees, you know you’re in a difficult area,” Court President Roberts said at his confirmation hearing in 2005.
Some of Judge Garland’s most important decisions have disappointed liberals. He sometimes voted against detainees in Guantánamo Bay, Cuba, and adhered to a decision that gave rise to “super PACs” after Citizens United, the 2010 Supreme Court decision that broadened the role of money in politics. In more common cases, he often ruled against criminal defendants who said their rights had been violated.
In 2003, he was part of a unanimous panel of three judges in Al Odah v. United States, which ruled that the men detained in Guantánamo could not contest their arrests in federal court based on a 1950 Supreme Court precedent. The Supreme Court subsequently rejected the appeals court’s reasoning.
In 2014, Judge Garland adhered to a decision defending a policy in Guantánamo that allowed guards to probe the genitals of detainees seeking to meet with their lawyers. The Supreme Court precedent required great deference to prison officials’ assessments of security protocols, the court said.
Also in campaign finance cases, Judge Garland followed the Supreme Court precedent in ways that sometimes frustrated liberals and sometimes encouraged them. He joined a unanimous opinion at SpeechNow.org v. Federal Election Commission, a 2010 decision by a panel of nine judges that allowed unlimited contributions to super PACs, nominally independent groups that support political candidates. The logic of the Supreme Court decision at Citizens United called for a change, the appeals court said, transforming the political landscape.
In 2013, he joined a unanimous unsigned opinion that rejected a request for the government to reveal images of Osama bin Laden’s corpse and burial at sea.
“It is indisputable,” said the opinion, “that the government is withholding the images not to protect transgression or avoid embarrassment, but to prevent the death of Americans and violence against American interests.”
Charlie Savage contributed reporting.