In a Republican-controlled Senate, Jones was seen as the easiest candidate to be confirmed, considering his strong relationships at the altar. Garland was also considered a risk, as it would be difficult to confirm a replacement for him in the appeals court.
But with the expectation that Democrats would have won the majority with two nasty victories in Georgia, the confirmation issues with other candidates largely dissipated. The announcement of the selection could take place as early as Thursday, Sen. Dick Durbin (D-Ill.) Told reporters on Wednesday.
Biden’s transition declined to comment.
Garland served on the DC Circuit Court of Appeals for more than two decades after receiving a nomination from President Bill Clinton in 1997. He received confirmation that year by a 76-23 vote.
When Judge Antonin Scalia died unexpectedly in early 2016, President Barack Obama turned to Garland for what the then President hoped would be a consensus choice for the vacancy. But Senate majority leader Mitch McConnell denied Garland a hearing or vote, leaving the nomination on hold for nearly a year. When Donald Trump won the election in 2016, any prospect of confirmation for Garland ended.
Prior to his appointment as a judge, Garland served as a senior Justice Department official and as a prosecutor in high-profile murder cases.
If Garland is confirmed, he will face a number of thorny issues, including whether and how to investigate Trump for episodes of potential obstruction of justice described in Special Attorney Robert Mueller’s final report, as well as allegations of tax fraud and other Trump-related crimes. .
Quoting a long-standing legal opinion from the Justice Department that prevents criminal charges against an incumbent president, Mueller did not offer a definitive conclusion on the obstruction charges, although former attorney general William Barr said none of the incidents would have been considered a crime even in the absence of opinion. However, the opinion does not preclude prosecution against a former president.
Since Garland was being considered a possible choice by the attorney general, he took some unusual steps to try to remain above any ethical criticism. In early December, he turned down a series of civil and criminal justice cases involving the United States government, including appeals related to a series of executions that the Trump administration is carrying out in the weeks leading up to the change in administration.
Garland’s choice of Biden brings a benefit to Democrats that may have made him more attractive in light of the Democrats’ expected victory in the second round races to the Georgia Senate on Tuesday: it opens a spot on the DC circuit, which is widely considered the country’s second most powerful court.
With the likelihood that Democrats will gain control of the Senate – and with the obstruction of lower and middle-ranking court appointments eliminated in 2013 – confirming a successor to Garland should be relatively easy. Some close to Garland thought he was likely to declare senior status soon and would open a vacancy in the court during the new administration, regardless of the outcome in Georgia and whether he was chosen as the attorney general.
Garland’s choice should be warmly welcomed by Hill’s Democrats, who were hurt by the Senate Republicans’ refusal to give him a hearing in 2016. But some Senate Democrats pushed for Jones to be nominated, with several writing a letter. Biden and his transition team urging the president-elect to nominate his former colleague. The letter, which was first reported by HuffPost, was organized by Senator Sherrod Brown (D-Ohio) and was sent to Biden’s team shortly after Christmas.