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Garland had been Obama’s nominee for the Supreme Court in 2016 but was blocked by Republicans.
Posted on January 6, 2021, at 12:42 p.m. ET
WASHINGTON — President-elect Joe Biden intends to nominate Judge Merrick Garland — former president Obama’s failed Supreme Court nominee — as the next attorney general, multiple news outlets reported Wednesday.
Biden’s selection is a return to the national spotlight for Garland, whose nomination to the Supreme Court in 2016 was famously blocked by the Republican-controlled Senate. The announcement comes after Democrats won two Senate seats in Georgia at Tuesday’s election, giving them control of the chamber. Garland’s nomination to head the Justice Department will be made official after Biden takes office on Jan. 20.
Garland is currently a judge on the powerful US Court of Appeals for the DC Circuit. With Democrats taking over the Senate, Biden will have a much easier time replacing him on the court, which is the main venue for fights over federal government actions and executive power, and has long been a springboard to the Supreme Court.
Garland is a Justice Department veteran, ping-ponging for decades between the department and private practice before his nomination to the DC Circuit in 1997. He served as a federal prosecutor in Washington, DC, in the early 1990s and as a senior official in the DOJ Criminal Division before becoming Principal Associate Deputy Attorney General in 1994. He oversaw the department’s investigation into the Oklahoma City bombing in 1995, which he has described as among the most important work of his career.
A major challenge for Garland leading the Justice Department will be to figure out how to handle the numerous active court cases in which the department is defending Trump administration policies that Democrats oppose. The Supreme Court is poised to rule in the new year on a challenge to the Affordable Care Act brought by the Texas attorney general’s office that the Trump administration backed, and left unresolved the lawfulness of Trump’s plan to exclude undocumented immigrants from census data used to decide how many seats in Congress each state will receive.
In the lower courts, there are pending cases challenging a host of executive actions taken by Trump and his administration, including ramped up immigration enforcement, environmental protection rollbacks, restrictions on federal funding to groups that provide abortion, a ban on racial sensitivity and diversity training for federal employees, and changes to US Postal Services policies blamed for mail delays this year. There are also pending cases where the Justice Department has backed Trump’s opposition to efforts by Democrats in Congress and state prosecutors in New York to gain access to his personal financial records.
Attorney General Bill Barr’s tenure was marked by rare public pushback from career prosecutors to decisions made by Barr and other senior political appointees that benefitted Trump and his allies, from intervening in criminal prosecutions stemming from the Mueller probe to easing limits on Justice Department activity before and after an election, a move that served to underscore Trump’s baseless voter fraud claims. Trump used Twitter to publicly urge the Justice Department to investigate and prosecute his political rivals.
Another question for Garland is whether he will pursue investigations into Trump, his family, and his political allies. NBC News reported in November that Biden did not want his administration to get weighed down by probes into Trump and his administration.
“I’m not going to be saying, ‘Go prosecute A, B, or C.’ I’m not going to be telling them. That’s not the role. It’s not my Justice Department, it’s the people’s Justice Department. So the persons or person I pick to run that department are going to be people who are going to have the independent capacity to decide who gets prosecuted, who doesn’t,” Biden said.
Trump had a fraught relationship with the Justice Department from the start. Just over a week after taking office, he fired then-acting attorney general Sally Yates when she directed government attorneys to not defend the first iteration of the president’s travel ban executive order in court. He tapped Jeff Sessions, then a Republican senator from Alabama and an early backer of Trump’s candidacy, to serve as his first attorney general, only to denounce Sessions for recusing from any involvement in the investigation into Russian interference in the 2016 election.
Trump repeatedly and publicly berated Sessions for the recusal decision over the next two years, ultimately forcing Sessions to resign shortly after the midterm election in November 2018.
Although Sessions lost Trump’s favor, he and his successors — Matthew Whitaker, who served as acting attorney general for four months, and Barr — were integral to Trump carrying out key elements of his political agenda. In and out of court, they backed Trump’s hardline immigration policies, supported efforts to roll back legal protections for LGBTQ individuals, and scaled back or ended Obama-era efforts to tackle police misconduct.
Under Barr, the Justice Department intervened in politically sensitive cases to the benefit of Trump’s allies, and Barr faced a public revolt from attorneys currently serving in the department. Barr was involved in a brief but dramatic showdown over the summer with Geoffrey Berman, then the US attorney in Manhattan, over Barr’s efforts to remove Berman from office.
Earlier this year, DOJ took the unusual step of trying to take over Trump’s defense against a private defamation lawsuit brought by the writer E. Jean Carroll who accused Trump of sexual assault. Biden on the campaign trail criticized DOJ’s effort to intervene in Carroll’s case, saying Trump was trying to turn DOJ into his “own law firm.” A federal judge in New York denied the department’s effort to get involved in the Carroll case, and the department is appealing that decision.
“Can you remember any Republican president going out there, or former Democratic president, ’Go find that guy and prosecute him’? You ever hear that? Or, by the way, I’m being sued because a woman’s accused me of rape. Represent me. Represent me. … What’s that all about? What is that about?” Biden said during a televised town hall in October.
Zoe Tillman is a senior legal reporter with BuzzFeed News and is based in Washington, DC.
News – Joe Biden Will Nominate Judge Merrick Garland As The Next Attorney General