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Biden Will Nominate Merrick Garland As Attorney General

Other nominations: Lisa Monaco as Deputy Attorney General, Vanita Gupta as Associate Attorney General, and Kristen Clarke to head Civil Rights Division

|The Volokh Conspiracy |

President-Elect Biden has announced the top leadership for the Department of Justice. Judge Merrick Garland will step down from the D.C. Circuit, and be nominated as Attorney General. (Although the Incompatibility Clause would not require him to do so.)

This selection was not a huge surprise. Last week, the D.C. Circuit released opinions from panels on which Garland sat. Each case included a footnote stating "Judge Garland was a member of the panel at the time this case was argued but did not participate in the final disposition of the case." This practice reminds me of the run-up to the Kavanaugh nomination. Shortly before Kavanaugh was nominated, the D.C. Circuit released several opinions from Kavanaugh panels.

Lisa Monaco will be nominated as the Deputy Attorney General. If, for whatever reason, Garland has to recuse, Moncao will act as Attorney General.

Vanita Gupta will be nominated as the Deputy Attorney General. She previously served in the Obama DOJ. Long before anyone had heard of the Vacancies Reform Act, Gupta served as the acting head of the Civil Rights Division. But she was never confirmed. My colleagues Ilya Shapiro and Thomas Berry wrote about challenges to her position on National Review and in this bulletin.

Finally, Kristen Clarke will be nominated as the Assistant Attorney General for Civil Rights.

We do not yet know who Biden will select as Solicitor General, and head of the Office of Legal Counsel.

I am content with Biden's nomination of Garland as Attorney General. Garland should bring some stability to DOJ. He does not strike me as the kind of person who will seek to criminally prosecute President Trump. I thought Garland's biggest demerit was that he was a white male. I suspected Biden would pick a female, or a person of color. But his selection of the apparent-moderate as Attorney General provides cover for his far more progressive selections: Gupta and Clarke. They will be able to push forward a far more aggressive agenda, with Garland as a senior statesman figure–almost a titular figurehead of DOJ. Savvy pick for Biden.

Soon, there will be a vacancy on the D.C. Circuit. I have to think that Judge Ketanji Brown Jackson, who is on the SCOTUS short list, would be a likely selection. But if Justice Breyer announces his retirement at the end of this term, it would not make sense to force Judge Brown Jackson to go through two confirmation hearings in the span of a few months. And there are risks of having a short-lister going through an unnecessary brutal fight.

There will be other D.C. Circuit vacancies in due time. Judges Rogers and Tatel have long been eligible for senior status. The Republican-appointed judges will become a permanent minority on the D.C. Circuit. I suspect the Supreme Court will have to grant many more cert petitions from D.C., especially in cases involving voting rights.

Update: Co-Blogger Jon Adler published a post about the Garland nomination shortly before I did. We agree on several points.