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WASHINGTON – President-elect Joe Biden will nominate federal appeals court Judge Merrick Garland to serve as attorney general, the nation’s chief law enforcement officer, two sources familiar with the decision said.
Garland’s nomination will come as Biden seeks to turn the page on a tumultuous period at the Justice Department marred by allegations of politicization under the Trump administration. By choosing Garland, who has spent the last two decades on the federal appeals court and has built a reputation as a moderate, Biden appears to be aiming to create a department free from political influence.
In addition to Garland, Biden also is expected to tap Lisa Monaco, former Obama administration Homeland Security adviser, to serve as deputy attorney general; Kristen Clarke, executive director of the National Lawyers Committee for Civil Rights, to lead Justice’s Civil Rights Division; and Vanita Gupta, a former acting civil rights chief, as associate attorney general, said the sources who were not authorized to comment publicly.
A source familiar with the decision said the nominees, all of whom are veterans of the Justice Department, were chosen because of their political independence and are expected to be pivotal in fulfilling Biden’s promise to root out systemic racism in policing, restore voting rights and prosecute hate crimes. Biden also campaigned on a promise to reform the federal criminal justice system by ending mandatory minimums and ending racial disparity in sentencing.
Garland’s nomination, in particular, underscores the need to boost morale among the department’s career prosecutors, the person said. Former attorney general William Barr had been at odds with career prosecutors on some of the Justice Department’s most high-profile prosecutions.
Barr last year overruled line prosecutors by recommending a lighter sentence for longtime Trump ally Roger Stone, while also seeking to drop the prosecution of former Trump national security adviser Michael Flynn. During a controversial speech in September, Barr repeatedly took aim at career prosecutors, referring to them as “headhunters” and asserting that the Justice Department has “sometimes acted more like a trade association of federal prosecutors than the administrator of a fair system of justice.”
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Supreme Court bid
Garland’s name most recently reentered headlines in November as Associate Justice Amy Coney Barrett, President Donald Trump’s third Supreme Court nominee, was confirmed weeks before the presidential election. In 2016, Garland found himself at the center of a political tug-of-war after former President Barack Obama nominated him to the Supreme Court to replace the late Associate Justice Antonin Scalia, one of the high court’s conservative jurists. Garland, then the chief justice of the federal appeals court, was seen as a palatable Supreme Court nominee for conservatives.
But Senate Majority Leader Mitch McConnell blocked the nomination, insisting that Scalia’s seat should not be filled because the presidential election was months away. McConnell abandoned that argument as he and Republicans pushed for Barrett’s confirmation.
At the time of Garland’s nomination, then-Vice President Biden criticized his former colleagues in the Senate. “By denying a fair hearing to Chief Judge Garland, Senate Republicans are failing to fulfill their Constitutional obligation,” Biden wrote.
Associate Justice Neil Gorsuch, Trump’s first Supreme Court nominee, ultimately filled Scalia’s seat.
Prosecuted Oklahoma City bomber, Unabomber
Garland is no stranger to the Justice Department. The 68-year-old jurist became a federal prosecutor in 1989 and led some of the department’s most significant criminal cases, including the prosecution of Oklahoma City bomber Timothy McVeigh in 1997. As a federal prosecutor, Garland also oversaw the Unabomber investigation that led to the 1990s conviction of Ted Kaczynski, a case he would later say resonated with him more deeply than others.
In this April 27, 1995, file photo, Merrick Garland, then the associate deputy attorney general, speaks to the media following the hearing of Oklahoma bombing suspect Timothy McVeigh in El Reno, Okla.
“I saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances and instead takes matters into his own hands,” Garland said. “Once again, I saw the importance of assuring victims and families that the justice system could work.”
Garland was nominated to the U.S. Court of Appeals for the D.C. Circuit – the second most powerful court in the country – in 1997 and was confirmed on a bipartisan vote. Garland went on to build a reputation as a consensus-builder and a moderate jurist who won praises from both sides of the aisle.
Civil rights needs
Biden, who also was considering former Obama deputy attorney general Sally Yates and former Alabama Sen. Doug Jones for Justice’s top job, had been under some pressure to appoint a person of color to the post, meeting with civil rights leaders last month.
Clarke, president and executive director of the National Lawyers’ Committee for Civil Rights Under Law, was among those who participated in the discussion, then urging Biden to create a voter-access commission because of the continuing litigation and disputes with state officials over voting rights.
Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, and other civil rights activists are urging the NFL to reverse its anthem rule.
“We need this administration to take seriously the task of undoing extensive damage that has been done under four years of the Trump administration. We need this administration to make fighting white supremacy, confronting racial violence, addressing police violence and tackling rampant voter suppression top-line priorities,” Clarke said then.
At the time, Clarke said the Trump administration had abandoned its civil rights enforcement mission.
“Restoring the integrity of the Justice Department will be no easy task. Watered down nominees will not be acceptable to our community. Whoever is selected for this most critical job must have a clear and bold record when it comes to civil rights and racial justice,” she said then. “The idea that Senate confirmability should serve as a measuring stick to the person who occupies this most central role is deeply troubling and unacceptable.”
The nominations of Gupta and Clarke to top Justice Department posts suggest that the Biden administration intends to make advancing civil rights a priority – a significant shift from the Trump administration, which has largely abandoned investigations of possible civil rights violations by police departments.
As civil rights chief under the Obama administration, Gupta, president and chief executive of the Leadership Conference on Civil and Human Rights, oversaw the Justice Department’s investigations of systemic police abuse in several cities, including Chicago, Baltimore and Ferguson, Missouri.
As a Justice Department attorney, Clark investigated police misconduct and worked on advancing voting rights.
Although Garland lacks a record on civil rights, “having people like Vanita and Kristen are going to make an enormous difference to make sure that the Justice Department takes a leading role in absolutely critical issues that the country is facing right now,” said Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and a former Justice Department attorney who has known and worked with both women.