WASHINGTON – President-elect Joe Biden has selected Merrick Garland, a federal appeals court judge who was berated by Republicans for a Supreme Court seat in 2016, as his attorney general, two people familiar with the selection process said on Wednesday.
In choosing Garland, Biden turned to a seasoned judge who held senior positions in the Justice Department decades ago, including director of law enforcement for the 1995 Oklahoma City bombing. The election will force the Senate Republicans to nominate someone that they spurned in 2016 – and refuse to even hold hearings if a Supreme Court position becomes vacant – but Biden can rely on Garland’s credentials and moderation reputation to back it up.
Biden is expected to announce Garland’s appointment on Thursday along with other senior department heads including former Homeland Security Advisor Lisa Monaco as assistant attorney general and former Justice Department civil rights chief Vanita Gupta as assistant attorney general. He will also appoint an Assistant Attorney General for Civil Rights, Kristen Clarke, who will be president of the Civil Rights Advocacy Committee, an advocacy group.
Garland was selected over other finalists, including Alabama Senator Doug Jones and former Assistant Attorney General Sally Yates. Those familiar with the process spoke on condition of anonymity. One said Biden views Garland as an attorney general who can restore the integrity of the Justice Department and as someone who, after serving under the presidents of both political parties in the Justice Department, is respected by impartial career workers.
If confirmed, Garland would face immediate challenges, including an ongoing criminal investigation into Biden’s son Hunter, as well as calls by many Democrats to start investigations against Trump after his departure. A special investigation by the lawyer into the origins of the Russia investigation also remains open, forcing a new attorney general to decide how to deal with it and what to publish.
Garland would also inherit a Justice Department that has had four tumultuous years and, after months of mass protests by law enforcement against the deaths of Black Americans, likely should not focus solely on civil rights issues and a national police policy overhaul.
It was unclear how Garland’s selection would be received by black and Latin American supporters who campaigned for a black attorney general or someone with a background in civil rights issues and criminal law reform. However, the selection of Gupta and Clarke, two women with significant civil rights experience, appeared designed to address these concerns and offered a signal that progressive causes will prevail in the new administration.
Garland would also return to a Justice Department fundamentally different from the one he left. The 9/11 attacks were years away, the ministry’s national security division had not yet been established, and an increase in aggressive cyber and counter-espionage threats from foreign adversaries has made counties such as China, Russia and North Korea a top priority for federal law enforcement.
Monaco brings significant national security experience to the department, including cybersecurity – a particularly pressing issue as the U.S. government faces a devastating hack by federal agencies that officials have linked to Russia.
However, some of the problems from Garland’s first stint in the department remain. Police-minority tensions, an issue that flared up after the Rodney King beating in Los Angeles in 1992, remains an urgent problem, especially after a summer of racist unrest that struck American cities following the murder of George Floyd Stricken in May in Minneapolis.
And the FBI is grappling with an increase in the number of violent anti-government and racially motivated extremists. This is a known threat to Garland, who in 1995 as a senior Justice Department official helped direct the federal government’s response to the bombing of a government building in Oklahoma City, which killed 168 people. Timothy McVeigh, the bomber who was later executed.
Garland described the job as “the most important thing I did” and was known for keeping a framed photo of the Alfred P. Murrah Federal Building in Oklahoma City in his Washington court office.
At the time of the bombing, Garland was 42 years old and was Assistant Attorney General, Lieutenant General to Attorney General Janet Reno. He was selected to go to Oklahoma City, the senior Justice Department official, and headed the prosecution for a month until a permanent chief attorney was appointed.
Garland was selected for the job over other candidates, including former Alabama Senator Doug Jones, who lost his Senate seat last month, and former Assistant Attorney General Sally Yates.
It is rare, but not unprecedented, that attorneys general have previously served as judges. It happened in 2007 when President George W. Bush selected Michael Mukasey, a former federal judge in Manhattan, for the job. Eric Holder, President Barack Obama’s first attorney general, was also previously a Supreme Court Justice.
Garland was nominated for a seat on the Supreme Court by former President Barack Obama in 2016 following the death of Justice Antonin Scalia, but Republicans refused to hold hearings in the final year of Obama’s tenure. The position was later filled by Judge Neil Gorsuch during the Trump administration.
Republican Senate majority leader Mitch McConnell refused to push the Senate nomination in the final months of Obama’s tenure. He was criticized by the Democrats this fall for taking the reverse approach to uphold the election of President Donald Trump’s Supreme Court, Amy Coney Barrett. He said the difference this time around is that the White House and Senate are controlled by the same political parties.
A year later, after FBI Director James Comey was fired, McConnell actually floated Garland’s name as a replacement for that position, though Garland was reportedly not interested.
Garland has been with the Washington Federal Court of Appeals since 1997. Before that, he worked in private practice as well as a federal prosecutor, senior civil servant in the criminal department of the Ministry of Justice and deputy attorney general.