Merrick Garland Would’ve Been a Great Justice. He’s Not a Great A.G.

Tom Brenner

Tom Brenner

Moving Merrick Garland off the federal bench to make him Attorney General seemed like a stroke of genius at the time. He’d gained a reputation over more than 20 years as a fair-minded judge, liked and respected by all those who dealt with him. Who better to become the nation’s top law enforcement officer at this troubled time of division than a man whose ability to bind up the nation’s wounds had been tested in the courts of law?

For Democrats, his appointment had the added allure of sticking it to Mitch McConnell, the GOP leader who had trashed the norms and traditions of the Senate to personally deny Garland a seat on the Supreme Court in 2016. Becoming Attorney General would be the consolation prize for getting cheated out of the job he’d been groomed for, righting a wrong that was searing for Democrats and for the country in cementing a conservative majority Court at a time of progressive change.

But less than five months later, questions are swirling about whether Garland, a self-effacing public servant, is miscast in his new role. Naming him was inspired, but for some Democrats, mainly progressives, he’s been a disappointment. Being a fair-minded judge sitting in his chambers isolated from public pressures is qualitatively different from taking over a corrupt and demoralized DOJ and clearing out the miscreants.

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They are two different skill sets, and the AG’s job requires an aggressiveness that Garland has been slow to project. That may be changing as Garland adjusts to being judged in the political arena on an almost daily basis on how far he is willing to go to rebuild the DOJ and to pursue the misdeeds and outright criminality of former President Trump.

He’s no Eric Holder, his Democratic predecessor, who relished confrontations with Congress and was at home in the political arena. A man who is cautious by nature, Garland has begun in recent days to more vigorously address the Trump hangover in public policy. With little fanfare, he doubled the size of DOJ staff dealing with voter suppression measures and ordered immigration judges to stop following Trump-era rules that made it harder for immigrants particularly from Central America and their family members to seek asylum based on domestic or gang violence.

Garland also officially closed the criminal probe initiated by Trump’s DOJ into former national security adviser John Bolton’s book, vindicating Bolton’s claim that Trump’s lawyers “acted illegitimately.” Published after Bolton left the White House, the book, “The Room Where It Happened,” discusses Trump’s call with the Ukrainian president that triggered his second impeachment.

These recent actions should help quiet critics whose bill of particulars against Garland include his decision to continue defending Trump against libel charges brought by a woman he allegedly raped, his lackluster efforts to combat Trump-era DOJ subpoenas of the cell phone records of prominent lawmakers and journalists, and his appeal of a court ruling that DOJ release the internal memo that former AG William Barr used to justify not charging Trump with obstruction of justice.

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This is not what the Democratic base thought it was signing up for with Garland, but taken one by one, they can be explained as what any AG might do to protect the prerogatives of the Department and to uphold the traditions he is trying to restore. First among them is impartiality from one administration to the next so that the AG is the people’s attorney, and not an arm of the White House. That has been particularly important to President Biden, who claims to have been blindsided by Garland allowing Trump-era subpoenas to stand.

It appears that Garland is doing exactly what Biden wants him to do, and that is to leave the heavy lifting on Trump to the Southern District of New York, which is expected to wrap up its investigation into Trump’s business dealings by the end of the year.

This rankles progressives, but the cautious Garland embodies Biden’s strategy of conveying a centrist, non-ideological image while quietly pursuing significant policy changes. After winning the White House, President Obama famously said he did not want to look into the rear mirror and exhume his predecessor’s post-9/11 policies, notably on torture. Democrats don’t want Biden to repeat that mistake. They want Trump to face consequences that go beyond a possible indictment on bank fraud in New York.

Garland’s success hinges on Biden’s success, and whether this nice guy approach to the job pays off in significant change on issues that matter beyond revenge. This is Garland’s second time around at DOJ. He was the lead prosecutor in 1995 on the bombing of a federal building in Oklahoma that killed 168 people and wounded hundreds of others, including children at a daycare center. Timothy McVeigh, a white supremacist, got the death penalty.

The shock of this enemy within was a wake-up call for the country. Americans looked to Washington for solace, and President Clinton rose to the occasion and rallied the country. Soon after, in 1997, Clinton nominated Garland for the United States Court of Appeals in the District of Columbia, the second most powerful court and a stepping stone to the Supreme Court. He was 63 when Obama nominated him to fill the vacancy created by Justice Scalia’s sudden death in February of 2016.

Obama chose Garland on the advice of former Senate Judiciary chairman Orrin Hatch, a Republican, who said the GOP-controlled Senate would confirm someone of Garland’s centrist caliber and relatively advanced age. The Republicans would never confirm a forty-something radical, Hatch said.

When it turned out McConnell’s senate wouldn’t confirm any Democrat of any age, Garland stayed on the court, where he served with distinction for 24 years until 2021 when he assumed the post of Attorney General.

The jury is out on whether Garland will meet the moment these extraordinary times demand in upholding the rule of law and rebuilding its citadel in Washington.

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