https://newrepublic.com/article/1619...torney-general
The Mystery of Merrick Garland
Biden’s attorney general is neither an ideologue nor a partisan, but a consensus-builder. How will he wield his power in this historic, politically charged moment?
Matt Ford/April 26, 2021
It’s hard to find someone in Washington who doesn’t like Merrick Garland. There are Republicans who don’t like Barack Obama and accordingly blocked the former president from elevating Garland to the Supreme Court in 2016. There are Republicans who don’t like Joe Biden and don’t want to see him, through Garland, reshape the Justice Department into something less Trumpian than it became over the past four years. But the list of people who don’t actually like Merrick Garland for Merrick Garland’s sake is virtually nonexistent.
Even many GOP senators enthusiastically supported Garland’s appointment. “I think you’re a very good pick for this job,” South Carolina Senator Lindsey Graham told the judge during his confirmation hearing. Iowa’s Chuck Grassley described him as “an honorable man” and likewise voted to confirm him. Even Mitch McConnell, who led the Supreme Court blockade of Garland five years ago, was an aye vote for Garland when his nomination reached the Senate floor.
There’s an Italian saying that a thin pope usually follows an overweight one. Something similar can be said about Biden’s decision to name Garland as attorney general. Jeff Sessions, Donald Trump’s first choice for the job, was unabashedly open about his disdain for immigrants and did everything he could to turn that venom into policy. His successor, William Barr, whom Congress confirmed in 2019, also freely conveyed his opinions on the preeminence of the executive branch, the illegitimacy of the Russia investigation, and the perceived threat to religious Americans from secularism and socialism—and exercised his official duties accordingly.
But Garland himself is something of a cipher, at least when it comes to identifying a driving agenda behind his tenure. As a federal judge for more than two decades, he is accustomed to not sharing his views on anything that would be considered controversial or political—a key reason that Obama thought he could get his Supreme Court nomination past McConnell’s scorched-earth Senate. Garland is known in legal circles as a meticulous and methodical jurist, who seeks to build consensus among his colleagues and treats litigants with respect. As the most apolitical man in Washington prepares to take the most politically charged job in D.C., the question is unavoidable: How long can the honeymoon last?
Like the man who nominated him, Garland is both an obvious choice for the job and an unlikely one. The Trump era produced a glut of high-profile Democrats with legal expertise. Blue-state attorneys general had led the charge against Trump’s policies in court, persuading judges to strike them down or at least delay their enactment, while years of oversight investigations and impeachment hearings produced viable contenders in Congress. Xavier Becerra, California’s attorney general, was considered a likely candidate before Biden instead asked him to be the next secretary of health and human services. Doug Jones, the former Democratic senator from Alabama who had prosecuted two Klansmen for the Birmingham church bombing in 1963, was on Biden’s short list after losing his seat in November. Had she not been chosen as vice president, it would have been easy to imagine Kamala Harris as a top contender for the job.
So how did Garland get tapped to be Biden’s attorney general? The most cynical interpretation of Biden’s choice is sheer pragmatism. Nominating Garland all but assured a smooth path to confirmation through the Senate, no matter who controlled it. (Biden nevertheless waited until the outcome of the Georgia runoffs was clear before making the Garland pick public.) Garland’s nomination also freed up a seat on the D.C. Circuit Court of Appeals, which is usually considered the second most powerful court in the nation and a warm-up spot for future Supreme Court nominees. There is even perhaps a dash of sympathy in the choice: Garland’s nomination gives him a chance to not be remembered as the would-be high court justice who was blithely snubbed by the U.S. Senate.
Nominating Garland, however, also fits well with the vision of governance that Biden had offered voters on the campaign trail. He is neither an ideologue like Sessions nor a partisan like Barr, partly because of his judicial oath and partly because of his temperament. Garland’s own sister told The New York Times in 2016 that she didn’t know her brother’s party affiliation. In more than two decades on the D.C. Circuit, Garland carved out a reputation as a consensus-builder. From his elevation to the appellate bench in 1997 to his nomination to the Supreme Court in 2016, Garland wrote just 11 dissenting opinions—a testament to his ability to bring colleagues of all stripes together.
“He was not a hands-off, let-the-clerks-just-do-their-thing kind of judge,” Jessica Bulman-Pozen, a Columbia University law professor who clerked for Garland from 2007 to 2008, told me. “He was himself totally steeped in every case. He knew all the details. He knew the record.” Garland is often described as a centrist or a moderate, because he does not fit neatly into any particular ideological box. That description, however, is less revealing than it seems. “I don’t want to say he’d be sort of moderate in the sense of waiting or restraint in addressing [things],” Bulman-Pozen said, “but I think moderate perhaps in the sense of being careful, conscientious, thorough.”
Garland is poised to be particularly zealous on one issue: cracking down on white nationalists and far-right extremists. He told senators at the confirmation hearing that, from his then-vantage outside the Justice Department, federal prosecutors’ efforts to bring the January 6 rioters to justice were “extremely aggressive and perfectly appropriate.” Just as the 1990s saw a significant uptick in militia activity and far-right violence, when Garland cut his teeth as a Justice Department official, the late 2010s and early 2020s are spawning a newly emboldened, Trump-fueled culture of right-wing terrorism.
In the last year, federal agents have foiled far-right plots to blow up electrical infrastructure in Nevada, to incite violent unrest, and to kidnap the governor of Michigan for issuing stay-at-home orders during the pandemic. As of early March, the Justice Department had active criminal cases underway against approximately 300 people from the Capitol attack alone; more could come as investigators probe how some groups organized and coordinated their ranks in the run-up to January 6. FBI Director Christopher Wray testified before Congress in March that the bureau has roughly 2,000 open domestic-terrorism cases—a figure that he said had doubled since he became director four years ago.
For Garland, this is familiar territory. Before joining the federal judiciary, his highest-profile role in public life was as the Justice Department’s point man to oversee the Oklahoma City bombing investigation, which he led from 1995 to 1997. The bombing of the Alfred P. Murrah building was the worst single terrorist attack before the September 11 attacks. It had a profound impact on the Justice Department officials who worked on it. “It was just shocking,” Beth Wilkinson, a former Justice Department lawyer who worked on the prosecution of Timothy McVeigh, told NPR earlier this year. “And there was a big call, you know, for vengeance. And [Garland] was so calm and really gave us very simple guidance about always doing what was right and being clear with the American public about what we were doing and why we were doing it.”
Confronting the destabilizing forces of white nationalism is also central to the department’s own mission, as Garland is quick to note. “Celebrating DOJ’s one hundred and fiftieth year reminds us of the origins of the department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights that were promised in the Thirteenth, Fourteenth, and Fifteenth Amendments,” he said during his confirmation hearing. “The first attorney general appointed by President Grant to head the new department led it in a concerted battle to protect Black voting rights from the violence of white extremists, successfully prosecuting hundreds of cases against white supremacist members of the Ku Klux Klan.”
Garland said federal prosecutors’ efforts to bring the January 6 rioters to justice were “extremely aggressive and perfectly appropriate.”
For Garland, the fight against far-right extremism also resonates on a personal level. “My grandparents fled antisemitism and persecution,” Garland said later during the hearing, when asked by New Jersey Senator Cory Booker about why he felt compelled to respond to hate crimes and persecution. “The country took us in and protected us,” he explained, his voice thick with emotion. “I feel an obligation to the country to pay back, and this is the highest, best use of my own set of skills to pay back.”
The attack on the Capitol was, in some ways, the most visible and violent symptom of a deeper struggle over the future of American elections. After Trump’s defeat, Republican state lawmakers across the country embarked on a sweeping effort to rewrite the nation’s election laws in the GOP’s favor. The Brennan Center for Justice counted more than 250 bills introduced by lawmakers in 43 states so far this year that would impose new restrictions on voting if passed. GOP legislators in Georgia, which narrowly elected Biden and two Democratic senators, are mulling an end to automatic voter registration, a sharp reduction in absentee ballot access, and the end of early voting on Sundays, which is used disproportionately by Black voters.
For all of the Trump Justice Department’s actions on other fronts, its relative inaction on voting rights also spoke volumes. In 2020, for instance, as the pandemic upended how American elections were traditionally conducted, a small army of private lawyers on both sides of the partisan divide took state governments to court to challenge the rules under the new circumstances. At issue was how those states processed absentee ballots, counted early votes, and more. Trump and his allies would later complain that judges, not lawmakers, had set the terms of the 2020 election.
Through it all, the Justice Department largely stayed on the sidelines of these high-stakes battles. The Civil Rights Division filed statements of interest in just a handful of voting rights cases, despite the national flurry of litigation. In two instances, the department even pushed back against the plaintiffs’ efforts in Alabama and South Carolina to enjoin witness requirements for absentee ballots. Eric Dreiband, the division’s chief at the time, said in a statement that the Voting Rights Act “does not outlaw all voting-related requirements enacted by the states,” thereby spinning a claim about extending ballot access into a nonexistent push to abridge the legal autonomy of states.
Under federal law, the attorney general has the ability to file similar statements in all manner of voting rights and civil rights cases. Deuel Ross, a senior counsel with the NAACP Legal Defense and Educational Fund who took part in some of the voting rights cases that drew the department’s interest, said that Garland would be able to bring the department’s weight to bear in a different way. “The hope is that even if the Justice Department doesn’t get actively involved in a case, rather than interpreting civil rights laws narrowly when they do amicus briefs or statements of interest,” he said, “that they’ll interpret them more broadly.”
When announcing Garland’s nomination on January 7, Biden made the unusual move of announcing three other major DOJ appointments. Lisa Monaco, his nominee for deputy attorney general, is a veteran counterterrorism prosecutor from the Obama administration. Biden also announced two prominent civil rights attorneys would join the team. Vanita Gupta, who led the Civil Rights Division from 2014 to 2017, was nominated to become the department’s third-in-command as associate attorney general. Kristen Clarke, who led the Lawyers’ Committee for Civil Rights Under Law, will take over the division itself. Each of the two has impeccable civil rights credentials. Both Gupta and Clarke previously worked for the NAACP Legal Defense and Educational Fund; Gupta had also worked at the American Civil Liberties Union.
Just as Trump’s choice of Jeff Sessions signaled his anti-immigration priorities four years ago, Biden’s early nominations of Gupta and Clarke clearly signal that his administration will prioritize traditional civil rights issues once more. “The Voting Rights Act, the Civil Rights Acts of the 1950s and 1960s, all contemplated the Justice Department playing an active role in enforcing voting rights and civil rights in general,” Ross told me. “Private actors and nonprofits can do some of the work and fill in some of the gaps. But really, we’re talking about everyone’s federal constitutional rights. And so, of course, the federal government should be actively involved in enforcing those rights.”
Under the Trump administration, the Civil Rights Division took up a series of cases that hewed closely to conservative interests. The department filed a lawsuit in 2020, for example, that accused Yale University of discriminating against Asian Americans in its admissions process and sided with the plaintiffs in a lawsuit accusing Harvard of the same. Under Barr, the Justice Department also intervened in legal challenges to Covid-19 restrictions by arguing in favor of churches and faith-based institutions that sought to reopen on religious-freedom grounds. At the same time, DOJ lawyers retreated from applications of existing civil rights laws that might cover gay and transgender Americans.
The Biden Justice Department also takes charge at an auspicious time. Over the next 18 months or so, every state in the Union will use the results of the 2020 census to redraw state legislative maps and congressional districts. Those maps, in turn, will set the geography of power for every legislative chamber in the country other than the U.S. Senate. Since the last redistricting cycle in 2011, the Supreme Court handed down two decisions that altered the state of play. The court’s 2013 decision in Shelby County v. Holder freed nine states with histories of voting discrimination from the preclearance provisions of the Voting Rights Act of 1965, which required them to seek federal approval for changes in voting laws and procedures. And in 2019, the Roberts court decided in Rucho v. Common Cause to remove the federal courts from the extreme partisan-gerrymandering fights that shaped districts in the House and state legislatures especially over the past 10 years.
“The general attitude of the DOJ Under Trump [was that] immigration lawyers are shady actors who are trying to stop people being deported who should obviously be deported.”
Such straitened oversight from the courts, combined with the surge in voting restrictions in statehouses, means that it’s likely that voting rights could be a defining fight for Garland and his team. After the Shelby County ruling, Ross said, the Obama Justice Department tried using other mechanisms to fight voter-ID laws in North Carolina and Texas. But the department also dropped its focus on many of the smaller logistical issues that fell under the purview of the preclearance system, which had scrutinized minutiae like polling-place changes and absentee-ballot requirements. In the push among GOP state legislatures to enact new voting restrictions, preclearance’s absence will be keenly felt. “My hope is the Justice Department will be very interested in those big laws that get passed by states like Texas and Georgia,” Ross told me, “but also in the smaller things that Section 5”—the Voting Rights Act’s preclearance provision—“had, for the most part, been a guard against.”
Meanwhile on immigration—the enforcement arm of the department probably most steeped in the Trump agenda—Garland will wield more power and discretion than on any other front. In some ways, he could be the most influential figure in shaping immigration policy over the next four years, especially since the Biden administration lacks an immigration adviser in the Stephen Miller mold who could use the White House’s authority to browbeat agencies into submission. After all, in the Trump years, Congress neither passed a major immigration law nor substantially rewrote the statutes that govern it. Most of what Trump was able to do came from the discretionary powers already baked into existing immigration statutes. Garland, for instance, could simply instruct prosecutors not to back shock-and-awe raids in sanctuary cities—or to refrain from charging border crossers if such actions will separate families.
Some fairly marked changes will occur on Garland’s watch thanks simply to his status as a non-Trump appointee. A spirit of undisguised malice hummed through the Justice Department’s actions over the past four years. In 2017, Sessions said in a speech that “dirty immigration lawyers” were telling clients to make “false claims of asylum” to delay or avoid deportation. “That was very quickly appropriated by all immigration lawyers as a badge of honor,” Aaron Reichlin-Melnick, the policy counsel at the American Immigration Council, told me. “I think I’ve got a mug that says ‘dirty immigration lawyer’ on it. People printed it on shirts.”
“That was the general attitude of the DOJ under Trump: Immigration lawyers are shady actors who are trying to stop people being deported who should obviously be deported,” he explained. “Never mind that due process requires an adversarial system in which everybody has a right to seek relief from deportation. The goal [was] to speed up deportations as much as possible, strip the authority of judges to delay things in the interest of justice, or when they feel necessary, and turn the immigration courts into a sort of assembly line for deportation.”
Still, there are some hard limits to Garland’s influence over immigration policy. He does not have control over Customs and Border Protection, which includes the Border Patrol, or Immigration and Customs Enforcement. Both of those agencies instead fall under the umbrella of the Department of Homeland Security. But the attorney general wields substantial influence over the course of immigration policy in two ways.
First, as the federal government’s top lawyer, Garland will be able to determine how to resolve lawsuits brought against the government. In some ways, Miller’s aggressive and haphazard use of executive discretion will make things easier for the Biden Justice Department. Many of the Trump administration’s signature changes—such as the remain-in-Mexico program, which forced some asylum seekers to stay in dangerous parts of that country while their claims were considered, and the public charge rule, which imposed a wealth test on green-card applicants—were still being contested in court when the Trump administration left power. Under Biden and Garland, the Justice Department could settle many of the legal challenges brought against both these programs on favorable terms for the plaintiffs or decline to appeal rulings against them in the lower courts. This would effectively abolish the Trump-era changes without going through the lengthy policymaking process prescribed by federal law.
Second, and perhaps more important, Garland will also take command of the nation’s immigration courts. The term “immigration court” is something of a misnomer: Cases in our immigration-law system are first heard not by Senate-confirmed judges, but by Justice Department employees who work for the Executive Office for Immigration Review. Rulings by immigration “judges” can be appealed to the Board of Immigration Appeals, whose members are chosen by the attorney general. The attorney general is empowered to pluck individual cases out of the EOIR process and overturn any decisions with which he or she disagrees—something that’s happened fairly frequently.
Sessions and Barr used this unique authority to sharply limit the ways that people could claim a “credible fear” of persecution under federal and international asylum law. In Barr’s instance, he reversed a BIA ruling that protected a Mexican man from deportation because his family was threatened by a drug cartel; in another case, he flouted precedents that would have allowed a man to stay in the United States because the Mexican mental health care facility to which he would have been sent was so dismal that his deportation would violate an international convention on torture. Sessions, for his part, used this power to rule that people fleeing domestic violence or local gangs in their home country weren’t eligible for asylum under his own exceedingly narrow interpretation.
Just as Trump’s attorneys general used this authority to unilaterally narrow the asylum system’s scope, so, too, can Garland. “They do it literally by just declaring: I am certifying this case to myself, and here’s my decision,” Reichlin-Melnick told me. “So despite the fundamental problems with the attorney general’s certification authority in general, we hope that the new administration uses that authority to fix a lot of the decisions of the previous administration.”
Garland may well have plenty on his hands just reversing the enforcement priorities of his immediate predecessors, but he’ll also be charged with expanding the department’s authority in other areas, notably in the urgent realm of antitrust enforcement. Last October, the House Judiciary Committee released a 450-page majority report on anti-competitive practices in Silicon Valley. It focused its attention on the big four tech companies—Amazon, Apple, Facebook, and Google—and concluded that the status quo was unsustainable.
“To put it simply, companies that once were scrappy, underdog startups that challenged the status quo have become the kinds of monopolies we last saw in the era of oil barons and railroad tycoons,” the committee’s Democratic majority concluded. “Although these firms have delivered clear benefits to society, the dominance of Amazon, Apple, Facebook, and Google has come at a price. These firms typically run the marketplace while also competing in it—a position that enables them to write one set of rules for others, while they play by another.”
Antitrust law is also familiar territory for Garland. He once described it as his “first love in law school” and later taught the subject as a professor. But he will inherit an Antitrust Division at DOJ at something of a crossroads. Biden has yet to nominate a new chief for it—though in other reaches of the federal bureaucracy, he’s appointed high-profile detractors of tech monopoly, such as Columbia University law professors Lina Khan and Tim Wu. Whoever Biden picks will inherit one of the department’s most important divisions—and perhaps its most beleaguered one. An analysis by the Partnership for Public Service found that the Antitrust Division had one of the largest drops in staff morale in the entire federal government since 2016.
Under Barr, the Justice Department filed a major antitrust lawsuit last October against Google, accusing it of using its near-total control of the search market to engage in “anticompetitive tactics to maintain and extend its monopolies in search and search advertising.” In December, the department sued Facebook for violating federal labor laws by attempting to exclude U.S. citizens from consideration for certain jobs. Days later, the Federal Trade Commission and 46 states also took the social-networking giant to court in a bid to reverse some of its recent acquisitions, arguing that it used Instagram and WhatsApp to suppress competition.
The Trump administration’s moves were the first major efforts to police anti-competitive behavior in Silicon Valley since the Justice Department took on Microsoft’s dominance of the personal-computing market in the 1990s. The Trump-backed flurry of actions reflected a growing consensus in Washington that Silicon Valley’s power over everyday American life had become too great and invasive. Liberals who are frustrated by tech companies’ role in amplifying disinformation and far-right extremism have brought Louis Brandeis’s old crusade against “the curse of bigness” to bear on former tech darlings such as Amazon and Apple. Meanwhile, conservatives, worked up over tech companies’ role in stifling disinformation and far-right extremism, have veered away from the GOP’s free-market rhetoric into a more populist approach.
Garland’s judicial record doesn’t offer a very clear sense of how he may rule on these big-stakes issues—but the Biden administration’s elevation of foes of big-tech monopoly such as Khan and Wu might supply a clue. Antitrust may be the one sphere in which Garland’s Justice Department will build out on the work begun under William Barr in the Trump years. It’s no great stretch, for example, to imagine a Justice Department inquiry into Apple’s use of the App Store to maintain dominance—or into the many ways that Amazon leverages its vast online marketplaces to stifle competition from brick-and-mortar retailers.
Navigating all of these issues will require all of Garland’s meticulousness and collegiality. And that’s before he even gets to the intensely partisan side of his job. Federal prosecutors in Delaware are reportedly probing the finances of Hunter Biden, the president’s son, to determine whether he violated tax and money-laundering laws in his eclectic business dealings. Former U.S. Attorney John Durham remains entrenched as a special counsel appointed by Barr to probe the Russia investigation’s origins. At some point, the Justice Department may even have to decide whether Donald Trump also committed tax fraud over the past 20 years. And those are, to borrow a phrase from Donald Rumsfeld, just the known unknowns.
For his part, Garland clearly realizes that he’s coming into power as the nation’s chief law enforcement officer at a singularly charged historical moment. He also has to know, from his prior tour as an involuntary conscript in the nation’s Supreme Court nomination wars, the kind of political pressures he’s going to face from all sides. After his nomination, he evoked the legacy of Edward Levi, who is widely credited with restoring the Justice Department’s reputation in the 1970s after the muck and grime of the Watergate era.
“If confirmed, my mission as attorney general will be to reaffirm those policies as the principles upon which the department operates,” he said. “As Ed Levi said at his own swearing in, ‘Nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose.’” It’s very likely that the legacy of Garland as leader of the Justice Department will stand or fall on the basis of how he manages to uphold that vision.
Illustration Source Photograph by Al Drago/Getty
Matt Ford @fordm
Matt Ford is a staff writer at The New Republic.
Mystery of Merrick Garland
