The Volokh Conspiracy

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Attorney General Merrick Garland

President Biden made the right pick to lead the Department of Justice. Progressives will still have their say over much of Department policy.


Today it's been reported that President Biden will nominate Judge Merrick Garland to be the next Attorney General of the United States. For reasons I highlighted back in November, this was a wise choice.

Judge Garland is well-respected on both sides of the aisle and [should] be a relatively non-controversial Attorney General nominee. More importantly, his stature and independence would give him a degree of credibility more "political" nominees might lack. If President-elect Biden is looking for an Ed Levi-like figure to take over the helm at Justice, it would be hard to do better than Judge Garland.  Indeed, given the tumult and controversy within the Department of Justice these past four years, a figure like Merrick Garland might be just what the Department needs.

I don't praise the Garland pick because of my policy preferences. As a former Justice Department official, former prosecutor, and judge, Garland has been more pro-government and less liberty-oriented than I would like, and certainly more so than some potential alternatives. In 2021, however, the AG pick is about more than policy preferences.

In normal times, any of the names floated as potential AGs would have been perfectly fine nominees for a Democratic Administration. Yet these are not normal times, and Judge Garland is uniquely qualified to lead the Justice Department in this divided time. Unlike former Senator Doug Jones, Judge Garland has not run for partisan political office and has managerial experience within the Department. Unlike former Acting AG Sally Yates, Garland will not be viewed as a partisan figure, will not have to recuse from matters such as the oversight of the Durham investigation, and (perhaps most importantly) will be able to make decisions on weighty matters, such as how to handle claims of alleged illegality by Trump Administration officials or even of President Trump, without undue suspicion of his motives.

Some progressives are expressing disappointment with the pick, but I think their complaints are unwarranted. The early indication is that the Biden Administration will tap attorneys with clear progressive pedigrees for many of the more policy-oriented positions within the department. The AP is reporting Biden will nominate former Obama Administration Homeland Security advisor Lisa Monaco as Deputy Attorney General, former Justice Department civil rights chief Vanita Gupta as Associate Attorney General and Kristen Clarke, president of Lawyers' Committee for Civil Rights Under Law, as Assistant AG for Civil Rights.

The Gupta and Clarke picks, in particular, should give progressives confidence that the DOJ will lean left on the policy matters they care most about. On day-to-day matters that do not reach the AG's desk, they will be calling the shots. Further, with Judge Garland as AG, progressives will actually have more room to maneuver. In a Nixon-goes-to-China way, Garland's position as AG will help shield their efforts and enable the Department to do more to advance progressive priorities than it would be otherwise.

It is also significant that, by nominating Judge Garland to be AG, Biden will free up a vacancy on the U.S. Court of Appeals for the D.C. Circuit. The odds-on favorite to fill the seat has to be Judge Ketanji Brown Jackson, a rumored Supreme Court short-lister should Justice Breyer retire. Yet this is unlikely to be the last D.C. Circuit vacancy President Biden will get to fill, so pay attention to who gets considered now. Runners up for this vacancy would likely be at the top of the list should Judges Tatel, Rogers, or Henderson take senior status. There are lots of highly qualified contenders for this court, including quite a few administrative law academics.