Dec 17, 2020 - Politics & Policy

Democrats fret about Garland for attorney general

Judge Merrick Garland.

Judge Merrick Garland. Photo: Bill O'Leary/The Washington Post via Getty Images

If Joe Biden picks Merrick Garland to be his attorney general, he could cost his party control of one of the most important judicial appointments in America — and many Democrats do not want the president-elect to take that chance.

How it works: Biden still hasn't named his choice to lead the Justice Department, and if he taps Garland, it would open up his seat on the D.C. Circuit Court of Appeals. If Democrats don’t win both Georgia Senate runoff seats next month, Majority Leader Mitch McConnell would almost surely prevent the president-elect from filling it.

  • If Democrats do manage to get a 50-50 Senate, Republicans would still have a lot of leverage — and this would be a seat worth fighting over. The D.C. court is considered second only to the Supreme Court in national importance.
  • Democrats are leery of the risk, given the broader drubbing they have taken at McConnell's hands over court appointments during the past 12 years.

Where it stands: The D.C. Circuit is already a heavily liberal court, with seven Democrats to four Republicans. Even if McConnell, the current Senate majority leader, kept the Garland seat open, it would not change the court's overall ideological balance.

  • But it could give him leverage over Biden in his other Senate negotiations or set in motion a series of events ending with a Republican replacing a Democrat on the second-highest court in America.

What they’re saying: “Opening up Garland's seat … when there are plenty of other perfectly good AG picks, would be most unfortunate,” tweeted Brian Fallon, a former Hillary Clinton spokesperson who now leads the liberal advocacy group Demand Justice.

  • “Merrick Garland is a great American, but I refuse to believe that Biden would open up a seat on the DC Circuit that McConnell would never fill if we don't prevail in Georgia,” former Obama senior adviser Dan Pfeiffer said.

Between the lines: Many in McConnell-world also see Garland as an especially provocative Biden pick, given the Kentucky Republican led a full-fledged blockade of the judge when President Obama nominated him to fill Justice Antonin Scalia's Supreme Court seat in 2016.

  • Nominating him to be the country's chief law enforcement officer only invites a revisiting of that history, although it also would allow Biden — who prides himself on his loyalty — to provide Garland with a means of public redemption.

Why it matters: The D.C. Circuit is the venue for many lawsuits against the federal government.

  • The court holds enormous power over federal regulations and other exercises of executive branch authority, hearing some of the highest-profile legal disputes in the country.
  • That’s why the stakes for a seat on the court are always so high: When Senate Democrats invoked the “nuclear option” in 2013, ending the filibuster on judicial appointments, it was to fill seats on the D.C. Circuit that Republicans were fighting to keep open.
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