WASHINGTON – President-elect Joe Biden has selected Merrick Garland, a federal appeals court judge who in 2016 was snubbed by Republicans for a seat on the Supreme Court, as his attorney general, two people familiar with the selection process said Wednesday.
In picking Garland, Biden is turning to an experienced judge who held senior positions at the Justice Department decades ago, including as a supervisor of the prosecution of the 1995 Oklahoma City bombing. The pick will force Senate Republicans to contend with the nomination of someone they spurned four years ago — refusing even to hold hearings when a Supreme Court vacancy arose — but Biden is banking on Garland's credentials and reputation for moderation to ensure confirmation.
Biden is expected to announce Garland’s appointment on Thursday, along with other senior leaders of the department, including former homeland security adviser Lisa Monaco as deputy attorney general and former Justice Department civil rights chief Vanita Gupta as associate attorney general, the No. 3 official. He will also name an assistant attorney general for civil rights, Kristen Clarke, the president of Lawyers’ Committee for Civil Rights Under Law, an advocacy group.
Garland was selected over other finalists including former Alabama Sen. Doug Jones and former Deputy Attorney General Sally Yates. The people familiar with the process spoke on condition of anonymity. One said Biden regards Garland as an attorney general who can restore integrity to the Justice Department and as someone who, having worked as both a federal prosecutor and a high-level supervisor inside the agency, will enjoy the respect of nonpartisan career staff.
Garland's confirmation prospects were solidified as Democrats on Wednesday scored control of the Senate majority by winning both Georgia Senate seats.
Garland would confront immediate challenges if confirmed, including an ongoing criminal tax investigation into Biden’s son, Hunter, as well as calls from many Democrats to pursue inquiries into President Donald Trump after he leaves office. A special counsel investigation into the origins of the Russia probe also remains open, forcing a new attorney general to decide how to handle it and what to make public.
Garland would also inherit a Justice Department that has endured a tumultuous four years and abundant criticism from Democrats over what they see as the overpoliticization of law enforcement. The department is expected to dramatically change course under new leadership, including through a different approach to civil rights issues and national policing policies, especially after months of mass protests over the deaths of Black Americans at the hand of law enforcement.
Black and Latino advocates had called for a Black attorney general or for someone with a background in civil rights causes and criminal justice reform. Groups including the NAACP Legal Defense and Educational Fund had championed Garland’s Supreme Court nomination, but the extent of his support from minority groups for the attorney general job was not immediately clear.
Though Garland is a white man, the selection of Gupta and Clarke, two women with significant experience in civil rights, appeared designed to blunt any concerns about his selection and served as a signal that progressive causes would be prioritized in the new administration.
Garland would also return to a Justice Department radically different than the one he left. The Sept. 11 attacks was years in the future and the department’s national security division had not yet been created. A proliferation of aggressive cyber and counterintelligence threats from foreign adversaries have made counties like China, Russia and North Korea top priorities for federal law enforcement.
Monaco in particular would bring to the department significant national security experience, including in cybersecurity — an especially urgent issue as the U.S. government confronts a devastating hack of federal agencies that officials have linked to Russia. Monaco previously led the department's national security division and was a chief of staff to ex-FBI director Robert Mueller.
Some of the issues from Garland’s first stint at the department persist. Tensions between police and minorities, an issue that flared following the 1992 beating of Rodney King in Los Angeles, remain a major concern particularly following a summer of racial unrest that roiled American cities after the May killing of George Floyd in Minneapolis.
And the FBI has confronted a surge in violence from antigovernment and racially motivated extremists. That is a familiar threat to Garland, who as a senior Justice Department official helped manage the federal government’s response to the 1995 bombing of a government building in Oklahoma City that killed 168 people. The bomber, Timothy McVeigh, was later executed.
Garland has called the work the “most important thing I have done” and was known for keeping a framed photo of Oklahoma City’s Alfred P. Murrah Federal Building in his courthouse office in Washington.
At the time of the bombing, Garland was 42 and principal associate deputy attorney general, a top lieutenant to Attorney General Janet Reno. He was chosen to go to Oklahoma City, the highest-ranking Justice Department official there, and led the prosecution for a month until a permanent lead prosecutor was named.
It is rare but not unprecedented for attorneys general to have previously served as judges. It happened in 2007 when President George W. Bush picked Michael Mukasey, a former federal judge in Manhattan, for the job. Eric Holder, President Barack Obama’s first attorney general, had also previously been a Superior Court judge in the District of Columbia.
Garland was put forward by Obama for a seat on the Supreme Court in 2016 following the death of Justice Antonin Scalia, but Republicans refused to hold hearings in the final year of Obama’s term. The vacancy was later filled during the Trump administration.
Republican Senate Majority Leader Mitch McConnell refused to let the nomination move forward in the Senate. He was criticized by Democrats this fall when he took the opposite approach toward confirming Trump’s Supreme Court pick, Amy Coney Barrett. He said the difference this time around was that the White House and Senate were controlled by the same political parties.
One year later, after the firing of FBI Director James Comey, McConnell said he would support Garland name as a replacement for that position, though Garland was said to be not interested.
Garland has been on the federal appeals court in Washington since 1997. Before that, he had worked in private practice, as well as a federal prosecutor, a senior official in the Justice Department’s criminal division and as the principal associate deputy attorney general.