The legal professional normal of Merrick Garland’s affirmation hearings start Monday
Judge Merrick Garland, US President-elect Joe Biden’s candidate for US Attorney General, speaks as Biden listens as he announces his nominations for the Justice Department on January 7, 2021 at his interim headquarters in Wilmington, Delaware.
Kevin Lamarque | Reuters
Merrick Garland is finally getting his Senate day.
Garland, President Joe Biden’s election as attorney general, will appear before the Senate Judiciary Committee on Monday on the first day of his confirmation hearings, which are expected to continue later this week.
The hearings were postponed due to partisan disputes while Democrats and Republicans struggled to reach a power-sharing deal in the evenly-divided Senate.
Those delays came after Garland was denied no hearings at all in 2016 when former President Barack Obama appointed the centrist judge to the Supreme Court following the death of Justice Antonin Scalia, the Conservative associate.
The federal appeals court judge is expected to be quickly confirmed – likely in early March – though he may be grilled uncomfortably, especially by the panel’s Republicans.
Senator Chuck Grassley, R-Iowa, the senior Republican on the Justice Committee, has stated that Garland will be asked how he will deal with the federal investigation into Biden’s son Hunter Biden related to the younger Biden’s finances. Hunter Biden has announced that the federal prosecutor is investigating his “tax affairs”.
All in all, however, the hearings are unlikely to be dramatic. In a statement, Democratic Committee Chairman Senator Dick Durbin of Illinois described Garland as “a consensus decision whose merits should be swiftly confirmed”.
Question of independence
Garland has been a judge on the US Court of Appeals for DC Circuit since 1997 and served as the chief judge in the court from 2013 to 2020, which was considered the most important except for the Supreme Court.
The 68-year-old, if confirmed, will head the Justice Department, which will be crucial to Biden’s agenda for criminal justice reform. Biden has also said that he hopes that by choosing Garland he can demonstrate a contrast to President Donald Trump’s use of the department for selfish ends.
“We must restore the DOJ’s honor, integrity and independence to this nation that has been so badly damaged,” Biden said during a January speech introducing Garland.
“I want to be clear to those in charge of this department who you are going to serve: you are not going to work for me. You are not the lawyer for the president or the vice president,” added Biden. “Your loyalty is not to me. It is to the law, the constitution and the people of this nation.”
Trump’s four-year tenure in the Justice Department was marked by controversy.
His first attorney general, Jeff Sessions, was forced to resign for good in 2018 after Trump attacked him for months for deciding to withdraw from former Special Adviser Robert Mueller’s Russia investigation.
William Barr, Trump’s last attorney general, has been charged with manipulating the prosecution of Trump allies Roger Stone and Michael Flynn and making misleading statements related to Müller’s final report.
Garland is committed to maintaining its independence.
“The essence of the rule of law is that the same cases are treated equally: there is no rule for Democrats and one for Republicans, one rule for friends, another for enemies, one rule for the powerful and another for the powerless,” he said last month.
Civil Rights Examination
It is likely that Democrats will push Garland to look at how his views on criminal justice align with Biden’s pledge to strengthen racial justice in the legal system. Civil rights groups have found that Garland has demonstrated a conservative stance in his decisions as a judge.
“Judge Garland very rarely ruled in favor of defendants in Fourth Amendment cases and has generally deemed law enforcement action appropriate in the circumstances,” the American Civil Liberties Union wrote in a 2016 report, while Garland stood under the Supreme Court’s consideration.
The report also found that Garlands “notable judgment rulings similarly display a pro-criminal perspective”.
During his campaign, Biden pledged to reduce the number of people detained in the United States and to eradicate inequalities in sentencing.
During his early days in office, he ordered the Justice Department to restrict contracts with private prisons and made other promises related to racial justice in the ministry. While the administration has been in place for a month, rights groups have been pushing for more to be done.
The Capitol Rebellion
An early test for Garland could be the result of the January 6 uprising in the Capitol, which led to increasing calls for a new domestic terrorism law to help the Federal Bureau of Investigation – part of the DOJ – find members help the pro-Trump mob who led the attack.
Federal prosecutors have said the investigation into the attack is likely unprecedented in the DOJ’s history, and that more than 200 people have already been charged.
While law enforcement groups have advocated such laws, civil rights groups have suggested that such bills fall hardest on already persecuted communities such as blacks and Muslims.
Garland is expected to fall back on his work in 1995 to oversee law enforcement resulting from the Oklahoma City bombing carried out by white supremacists.
Garland not only assembled the litigation team in this case, but also drafted the Department of Justice’s plan to respond to critical incidents and “oversaw the US Marshal Service Vulnerability Assessment for Federal Institutions.”
Subscribe to CNBC Pro for the live TV stream, deep insights and analysis of how to invest during the next president’s term.