WASHINGTON – President-elect Joe Biden plans to nominate Merrick Garland, a Democratic casualty of the bitter partisan divide in Washington over court nominees, to become the next attorney general, according to people familiar with the decision.
Garland, 68, serves as a judge on the federal appeals court in the District of Columbia. He is best known for being nominated to the Supreme Court in 2016 by President Barack Obama – a nomination that went nowhere because Senate Republicans refused to give him a hearing. The opening on the high court was eventually filled the following year by President Donald Trump’s choice, Neil Gorsuch.
Biden’s transition team did not immediately respond to a request for comment. The intended nomination was first reported Wednesday by Politico.
Many Democrats still think of Garland as a living example of Republican double-standards when it comes to the courts and the law, though some Biden advisers have come to view him as well-suited to restore norms of nonpolitical decision-making at the Justice Department, given his track record as a judge and a former senior official at the department, according to people familiar with the decision.
To some in Biden’s circle, Garland seems like the best choice to restore the Justice Department’s credibility, which eroded under Trump. He enjoys a reputation as a unifying, moderating force on the appeals court, and some Democratic advisers said they view his selection as a signal to congressional Republicans that the department will operate in an evenhanded fashion in the Biden administration.
Karen Dunn, a former prosecutor who once clerked for Garland, called him “the perfect choice for this job. He will restore independence and integrity to the Justice Department, be the people’s lawyer, not the president’s lawyer, and will come in with the respect of the career public servant who advance the cause of justice every day.”
But some defense lawyers and criminal-justice-reform advocates have said they worry Garland’s record on the bench shows he is too deferential to the government and law enforcement – and perhaps would not be as aggressive about implementing the kind of dramatic changes they seek.
Biden advisers are hopeful that the slate of senior officials tapped to fill out Justice Department leadership roles around Garland will ease any such concerns from civil rights groups, according to people familiar with the discussions, who like others spoke on the condition of anonymity because Biden’s selection has not been formally announced yet.
These people said Biden and his inner circle of advisers plan to nominate Lisa Monaco, a former national security official during the Obama administration, to serve as deputy attorney general, the Justice Department’s No. 2 position. Monaco, once considered by Obama as a candidate to lead the FBI, has held senior positions within the Justice Department and the bureau.
The incoming administration has picked Vanita Gupta, the former head of the department’s civil rights division under Obama, to take the No. 3 job there, these people said. Gupta is president of the Leadership Conference on Civil and Human Rights and an outspoken critic of the Trump administration’s record on civil rights.
Biden also plans to nominate Kristen Clarke to lead the Justice Department’s civil rights division, these people said. Clarke once worked in that division’s criminal section, handling police misconduct, brutality and hate crimes cases. She is president of the National Lawyers’ Committee for Civil Rights.
Neither Gupta nor Clarke immediately returned messages seeking comment.
Garland was nominated to the appeals court by President Bill Clinton, after a stint as a senior Justice Department official in which he oversaw the prosecution of the 1995 bombing of the federal building in Oklahoma City that killed 168 people. He also oversaw the prosecution of Theodore Kaczynski, the Unabomber suspect who eluded authorities for years while mailing bombs to people.
Garland has called his work on the Oklahoma City case “the most important thing I have ever done in my life,” and his selection suggests that the incoming Biden administration wants someone running the Justice Department with experience in dealing with domestic terrorism.
Neal Katyal, a former acting solicitor general, called Garland “the definition of fair. It’s a hard task to bring back honor and integrity to the Justice Department after what Trump has done,” Katyal said. “If anyone can do it, it’s Judge Garland.”
If Garland is confirmed as attorney general, the selection would leave an opening on a key federal appeals court. Before Tuesday’s Senate elections in Georgia, some Democrats had worried Republicans might block an effort to fill the vacant seat, leading to a loss of Democratic influence on the court. But with Democrat Raphael Warnock having won his race – and Democrat Jon Ossoff holding a lead – it now seems more likely that Democrats will seize control of the Senate, making it easier for Biden to get nominees for both administration posts and the federal courts.
The Georgia races did not factor into Biden’s decision to pick Garland, according to a Biden transition official. The president-elect wanted to be sure his nominee would be seen as a lawyer serving the country’s interests and not the president’s personal interests, this person said, noting that Biden also was eager to select a person who would empower career department employees to work independently of any political influence.
Jamie Gorelick, a former deputy attorney general who worked with Garland when he was last in the Justice Department, said he will “bring his judicial temperament and judicious personality to the table.”
Garland will be confronted with a number of thorny legal and political challenges if he is confirmed, including how to handle the two-year-old investigation into the finances of the president’s son Hunter Biden, and what to do about calls from liberals and other Trump critics to investigate or prosecute Trump and his inner circle.
The next attorney general will also face a host of policy decisions made by the previous administration that will either be undone, modified or left alone. Democratic administrations have sought to shorten prison sentences for some types of drug offenses, while the department under then-Attorney General Jeff Sessions moved in the opposite direction.
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The Washington Post’s Annie Linskey and Matt Viser contributed to this report.