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January 6, 2021

Prez-elect Biden's slate of nominees for the Justice Department revealed, with Judge Merrick Garland tapped for Attorney General

As reported in this new AP piece, "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."  Here is more on who is slated to help run a new Justice Department:

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.  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 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 served in the Justice Department under presidents of both political parties, will be respected by nonpartisan career staff.

If confirmed, Garland would confront immediate challenges, including an ongoing criminal tax investigation into Biden’s son, Hunter, as well as calls from many Democrats to pursue inquiries into 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 would likely need to focus on not only civil rights issues and an overhaul of national policing policies after months of mass protests over the deaths of Black Americans at the hand of law enforcement.

It was unclear how Garland’s selection would be received by Black and Latino advocates who had advocated for a Black attorney general or for someone with a background in civil rights causes and criminal justice reform.  But the selection of Gupta and Clarke, two women with significant experience in civil rights, appeared designed to blunt those concerns and offered as a signal that progressive causes will be prioritized in the new administration....  Monaco brings 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.

I have sensed that Garland's record as a relative moderate on criminal justice issues while serving as a judge on the DC Circuit has led many criminal justice reform advocates to not be especially excited by the prospect he could become Attorney General.  But, as this AP article suggests, the naming of Vanita Gupta as associate attorney general should exciting CJ reformers.  In forthcoming confirmation hearing and in other setting, it will be very interesting to see what tone a future AG Garland and other new DOJ members will set as to criminal justice reform efforts generally and as to what sets of CJ issues may be initially given the most attention.

January 6, 2021 at 01:59 PM | Permalink


It'll just be great to return some semblance of sanity in US Government and Law-making after the totally insane spectacle today of a President inciting supporters with lies and unconstitutional acts at Capitol Hill and Georgia. Unbelievable and degrading scenes which will damage democracy not only in the US but around the world.

Posted by: peter | Jan 6, 2021 4:09:43 PM

Two questions come to mind after the announcement.

First, who will replace Judge Garland on the D.C. Circuit? The nominee may be on the short list if Justice Breyer would choose to retire in 2022.

Second, who will be Solicitor General?

Posted by: tmm | Jan 7, 2021 2:24:30 PM

The rumor for Garland’s replacement is (Resistance heroine) Ketanji Brown Jackson. Although some people are saying if Breyer is stepping down soon and Biden is saving KBJ for that seat, it doesn’t make sense to put her through the confirmation ringer for CADC when she’ll just have to do it again for SCOTUS. Not sure I buy that argument, but it’s out there for consideration.

SG is a good question. No gossip on that as far as I know. Obviously an important appointment but a bit less so than judges and the key cabinet positions. And not as big a deal to the general public although it holds a lot of interest for legal wonks of course. Does anyone have access to the tea leaves on possible SGs? Katyal and Kruger would be two obvious possibilities...

Posted by: hardreaders | Jan 7, 2021 9:05:29 PM

I thought Judge Ketanji Brown Jackson would have been the smart pick by Prez Obama for the Scalia/Garland slot back in 2016, and I think she remains a smart pick for the DC Circuit or SCOTUS. I would not be surprised if the Biden team sought to get some good press from making KBJ the very first judicial nomination (and just a day or two after Garland's confirmation). She has already been twice confirmed by the Senate (for the US Sentencing Commission and the the USDC for DC), and I actually think you ease her path to SCOTUS if she was confirmed (by a hefty margin) for a DC Circuit seat by the same Senate.

I would not be surprised to see Neil Katyal as an SG pick, but I sense there are some who worry he is "too corporate."

Posted by: Doug B. | Jan 7, 2021 9:55:03 PM

I agree with everything you said about KBJ. Even if, say, she never made it to SCOTUS, it’d still be an upgrade to Garland on CADC, both in terms of jurisprudence and longevity on the court. Not that Garland is bad; he was totally cromulent, but KBJ is clearly an improvement.

Also I didn’t know she was on the USSC too. That is cool.

Katyal is a nice guy and all and obviously super qualified, but definitely way too corporate for my liking at least.

Posted by: hardreaders | Jan 9, 2021 12:59:02 AM

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