The decision to nominate Merrick Garland as Attorney General is, for better and worse, Joe Biden through and through:
The choice of Garland is a good indication — both for better and for worse — of what can be expected of a Biden administration: competent governance that is more moderate than the progressive wing of the Democratic Party would prefer. But if there is any silver lining from progressives’ perspective, it is that it seems to indicate that Biden is less convinced about his ability to work with Senate Republicans than his rhetoric sometimes suggests.
It also seems highly likely that Biden was influenced by Garland’s Supreme Court nomination: Giving Garland the nod for attorney general is understandable, both as a reward to Garland for enduring public disappointment and humiliation in service to the Obama administration’s agenda and as a way to troll McConnell, who has lost his power to stop Garland’s confirmation.
That effort to right a previous wrong to Garland is understandable but not necessarily wise: McConnell got to fill Scalia’s seat with arch-conservative Neil Gorsuch, then 49, and having Garland serve a couple of years as Biden’s attorney general is a revenge with which McConnell can presumably live quite comfortably. And while one can sympathize with Garland’s being so close to a lifelong goal and then not even getting a fair hearing, he still had a life-tenured position on the most powerful federal circuit court. Nobody is owed a seat on the Supreme Court; Garland didn’t need to be made whole.
He should have been chosen as Biden’s attorney general if he was the best choice on the merits, and here there are real concerns.
As many liberal skeptics noted when he was a Obama’s Supreme Court nominee, Garland is a former prosecutor whose record on civil liberties is particularly concerning; his embrace of “tough on crime” policies may have represented the elite Beltway consensus in the ’80s and ’90s, but it wasn’t intellectually defensible then, and it certainly isn’t in retrospect. The American Civil Liberties Union’s comprehensive evaluation of his circuit court tenure found Garland to be a careful craftsman with a fairly liberal record on issues like civil rights but a conservative record on civil liberties. According to the report, Garland “very rarely ruled in favor of defendants in Fourth Amendment cases,” and his “notable sentencing decisions similarly demonstrate a pro-prosecution perspective.”
Admittedly, Democratic elites have generally moved to the left on civil liberties in the last decade as the horrible costs of mass incarceration and police overreach become increasingly manifest (or, at least, increasingly harder to ignore than they had before), and it’s possible that Garland has reconsidered some of his positions. But after a summer of robust protests against police violence against Black people, it would be preferable to have a leader rather than a follower on these issues as attorney general.
Whatever his faults, though, Garland will certainly be a massive improvement on his immediate predecessors. Former Sen. Jeff Sessions, R-Ala., was a malicious authoritarian whom a Republican-controlled Senate had previously considered too racist to be a federal judge. William Barr, who seemed to conceive of his role as being Trump’s personal attorney, was somehow a step down even from Sessions.
Garland, a very able, widely respected judge, will bring some much-needed professionalism to a Justice Department that has been left a total shambles by Trump’s attorneys general — and after four years of Trump appointees, quiet, unexciting proficiency is not without its virtues.