Perhaps the most patient man in Washington, Merrick Garland is not likely to be late for his appointment with senators on Monday. He has, after all, been waiting five years for this moment.
Garland would now be a supreme court justice if Barack Obama had his way in 2016. But Senate Republicans refused to consider him then and Garland is now Joe Biden’s pick for attorney general.
Any sense of poetic justice might soon dissipate at his confirmation hearing before the Senate judiciary committee. Garland, a centrist, is likely to face sharp questions from left and right.
Progressives are expected to grill the 68-year-old about his commitment to racial justice, voting rights and domestic terror. Republicans might seek to wrong-foot him on how law enforcement should handle mass protests and on potential prosecutions, from Biden’s son Hunter to former president Donald Trump.
“Hopefully it will make up somewhat for the frustration he must have felt when his nomination for the supreme court was blocked,” said Ed Fallone, an associate law professor at Marquette University in Milwaukee, Wisconsin. “On the other hand, President Obama sent him into a thankless task when he nominated him to the court and it may be that Joe Biden is also setting him up for a thankless task, so one has to wonder what Merrick Garland did to deserve this.”
Garland will inherit a justice department battered by Trump, who undermined its independence, weakened its civil rights enforcement and repeatedly accused employees of working for the “deep state”. The political moderate will also walk into the crossfire of hyper-partisan Washington.
Fallone added: “He’s going to inherit a demoralised justice department in terms of staff. He’s going to have to try to get the career people back on track. It’s also a staff that’s been hit very hard by departures so he’s going to have to ramp up the hiring and bring on good people.
“He’s the best attorney general Republicans could hope for in terms of potential nominees because of his reputation for integrity and fairness but he’ll never satisfy them. And he’s never going to satisfy the progressive wing of the Democratic party in particular on issues relating to police misconduct and voting rights. They’re going to want a much more muscular attorney general than I think is in Merrick Garland’s DNA.”
The justice department is still grappling with the aftermath of the police killing of George Floyd, which led to widespread demonstrations against racial injustice and police treatment of African Americans. Senate hearings are often an exercise in avoiding errors but given the stated priorities of the Biden administration, this is one area where Garland might feel comfortable committing.
When he accepted the president’s nomination, he said “ensuring racial equity” and “meeting the evolving threat of violent extremism” would be top priorities. He can point to a record that includes bringing Timothy McVeigh and his co-conspirator Terry Nichols to justice for the 1995 bombing of a federal office building in Oklahoma City that killed 168 people.
On civil rights, however, questions remain. According to the Brennan Center for Justice, 165 pending bills in 33 states would make it harder to vote. Both Democrats and Republicans might seek clarity on how far Garland is willing to intervene.
LaTosha Brown, co-founder of Black Voters Matter, said: “My concern is that he does not have a strong civil rights history. He has been in many ways a moderate, uneventful judge. Even when Obama nominated him, one of the critiques was that he was making a compromise with what he thought was a ‘clean’ candidate to get through.
“And what I need in the midst of Black people and our voting rights being under attack is the strong arm of the federal government to make sure that democracy is not dismantled or that we don’t go back to a voting rights fight that we already won in Selma, Alabama, 55 years ago.”
Trump’s second attorney general, William Barr, oversaw a harsh federal response to Black Lives Matter protests and intervened in criminal cases in ways that benefited the president’s allies, including Roger Stone and Michael Flynn. By the end, the wall separating politics from law enforcement lay in ruins.
Paul Rosenzweig, a resident senior fellow at the R Street Institute, a non-partisan public policy research organisation, said: “Bill Barr was Thomas Cromwell to Trump’s King Henry VIII, the enabler who tried to do everything for his king and then got axed in the end because there were a few lines that even he was not willing to cross.
“I think Bill Barr politicised the department and was as destructive, if not more destructive, of the rule of law and things that are important to American norms of legal behaviour than Trump was, at least in part because he knew what he was doing was wrong and did it anyway. I see the Department of Justice as very damaged and Merrick Garland as the restorative balm.”
But Garland will face the difficult task of restoring confidence while inheriting politically sensitive investigations into the origins of the FBI Russia investigation, Hunter Biden’s taxes and the 6 January insurrection at the US Capitol by Trump supporters.
When Joe Biden has faced questions over whether his predecessor should be prosecuted, he has deferred to the justice department. That will put Garland on the spot on Monday.
Rosenzweig said: “If Garland has any smarts at all – and he does – he won’t answer that question. ‘Having studied the facts, I’ve been a judge on the DC circuit, I really don’t know anything about what happened except what I read in the papers. We wouldn’t make that decision until after fully reviewing the facts.’”
Born and raised in Illinois and educated at Harvard, Garland has been a judge on the powerful US court of appeals for the District of Columbia circuit since 1997. When Obama nominated him to the supreme court, the Republican Senate majority leader, Mitch McConnell, refused to hold hearings.
Garland’s confirmation this time is regarded as a near formality, given that several key Senate Republicans have endorsed him. Rosenzweig added: “He is probably one of the best picks possible at this time. The Republicans may vote against him, but they will do so out of tribal loyalty rather than out of any real feeling. He has a reputation for honesty and probity that is as good as it gets in a divided Washington today.
“Nobody who opposed him for the supreme court said it was because he was a bad justice. So I think it is a wonderful capstone to his career and I am gratified that he was willing to give up the remainder of his time on the bench to help America when it needed it.”