The choice of a judge is unusual and may reflect an effort by the president-elect to bring in an apolitical leader to bolster the Justice Department’s independence from politics.

President-elect Joseph R. Biden Jr. plans to nominate Judge Merrick Garland, whose Supreme Court nomination Republicans blocked in 2016, to be attorney general, placing the task of repairing a beleaguered Justice Department in the hands of a centrist judge, according to a person familiar with the matter.

If confirmed, Judge Garland, who has sometimes disappointed liberals with his rulings, would inherit a department that grew more politicized under President Trump than at any point since Watergate. Judge Garland will face vexing decisions about civil rights issues that roiled the country this year, whether to investigate Mr. Trump and his administration and how to proceed with a tax investigation into Mr. Biden’s son.

The nomination ended weeks of deliberation by Mr. Biden, who had struggled to make a decision as he considered who to fill for a position that he became convinced would play an outsized role in his presidency. Mr. Biden’s nominations are expected to broadly win confirmation as Democrats appear poised to take control of the Senate.

Mr. Biden, who served as the longtime top Democrat on the Senate Judiciary Committee and chaired it from 1987 to 1995, was said by aides to have long weighed what makes a successful attorney general and put pressure on himself to make the right pick. Outside groups also pressed him during the transition to appoint someone who is a minority and would take a far more confrontational position with law enforcement.

Mr. Biden also intends to nominate Lisa Monaco, a former homeland security adviser to President Barack Obama, as deputy attorney general; Vanita Gupta, the head of the department’s civil rights division under Mr. Obama, as the No. 3; and Kristen Clarke, a civil rights lawyer, as assistant attorney general for civil rights, which is expected to be a major focus of the department under Mr. Biden.

Judge Garland was initially considered a long shot for attorney general, in part because he is seen as politically moderate. In close cases involving criminal law, he has been significantly more likely to side with the police and prosecutors over people accused of crimes than other Democratic appointees. He also leaned toward deferring to the government in Guantánamo detainee cases that pit state security powers against individual rights.

Moreover, judges are only occasionally elevated directly to the position. The last was Judge Michael Mukasey of Federal District Court, whom George W. Bush appointed to run the Justice Department in 2007.

Mr. Biden was also said to have considered Sally Yates, the former deputy attorney general in the final years of the Obama administration; Doug Jones, the former Alabama senator; and Deval Patrick, the former governor of Massachusetts who briefly ran for the Democratic Party’s presidential nomination.

Judge Garland will have to reckon with a Justice Department accused of politicization over Mr. Trump’s efforts to influence investigations and former Attorney General William P. Barr’s willingness to serve his political agenda. Obama-era Justice Department officials have called for the Biden administration to strengthen the department’s independence from politics, and Judge Garland will also have to navigate demands from some Democrats to investigate Mr. Trump.

The decision to appoint Judge Garland appeared similar to one that Gerald R. Ford made in the wake of the Watergate scandal. Mr. Ford nominated Edward H. Levi, a university president whose political leanings were unclear, to take over to restore the Justice Department’s credibility. Democrats and Republicans later praised Mr. Levi’s ability to apolitically repair the department.

Judge Garland will likely face pressure to also try to steer the department’s priorities from the Trump administration’s focus on immigration and violent crime to issues that Democrats have typically prioritized, like policing overhauls and voting rights. But Judge Garland will also have to make decisions about how to handle the tax investigation of Mr. Biden’s son Hunter. Republicans, still angry over the investigation into the Trump campaign’s ties to Russia, have called for the Justice Department to appoint a special counsel to investigate the matter.

Mr. Garland, a judge on the United States Court of Appeals for the District of Columbia Circuit, was nominated by Barack Obama in 2016 to fill the position left on the Supreme Court by the death of Antonin Scalia. While the nomination dismayed some liberals, Senate Republicans — led by the majority leader, Mitch McConnell — refused to vote on his nomination, saying that it should not be filled in an election year.

Ultimately, President Trump filled the vacancy with Judge Neil Gorsuch, a conservative in the mold of Justice Scalia.

Judge Garland’s career was dramatically affected by the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people. Mr. Garland, a Justice Department official at the time, played a direct hand in the Clinton administration’s response.

President Bill Clinton appointed Judge Garland to the United States Court of Appeals for the District of Columbia Circuit in 1997, and he served as its chief judge from 2013 to February 2020. Though the court is often called the second most important in the nation, after the Supreme Court, its idiosyncratic docket is dominated by cases concerning regulatory agencies and tends to include few major controversies on social issues.

On the court, Judge Garland earned praise from across the political spectrum for the exceptional quality of his opinions, which are considered models of the judicial craft — methodically reasoned, clear, attentive to precedent and tightly tied the language of the relevant statutes and regulations.

Chief Justice John G. Roberts Jr., who served on the appeals court with Judge Garland, has said that he holds his former colleagues in high regard.

“Anytime Judge Garland disagrees, you know you’re in a difficult area,” Chief Justice Roberts said at his 2005 confirmation hearing.

Some of Judge Garland’s most prominent decisions disappointed liberals. He sometimes voted against detainees at Guantánamo Bay, Cuba, and he joined in a decision that gave rise to “super PACs” in the aftermath of Citizens United, the 2010 Supreme Court decision that amplified the role of money in politics. In more ordinary cases, he often ruled against criminal defendants who said their rights had been violated.

In 2003, he was part of a unanimous three-judge panel in Al Odah v. United States, which ruled that men held at Guantánamo could not challenge their detentions in federal court based on a 1950 Supreme Court precedent. The Supreme Court later rejected the appeals court’s reasoning.

In 2014, Judge Garland joined a decision upholding a policy at Guantánamo that allowed guards to probe the genitals of detainees seeking to meet with their lawyers. Supreme Court precedent required great deference to prison officials’ assessments of security protocols, the court said.

In campaign finance cases, too, Judge Garland followed Supreme Court precedent in ways that sometimes frustrated liberals and sometimes cheered them. He joined a unanimous opinion in SpeechNow.org v. Federal Election Commission, a 2010 ruling from a nine-judge panel that allowed unlimited contributions to super PACs, nominally independent groups that support political candidates. The logic of the Supreme Court’s decision in Citizens United required the move, the appeals court’s opinion said, transforming the political landscape.

In 2013, he joined a unanimous unsigned opinion rejecting a request that the government disclose images of Osama bin Laden’s corpse and burial at sea.

“It is undisputed,” the opinion said, “that the government is withholding the images not to shield wrongdoing or avoid embarrassment, but rather to prevent the killing of Americans and violence against American interests.”

Source: https://www.nytimes.com/2021/01/06/us/politics/merrick-garland-attorney-general.html

News – Biden Said to Pick Merrick Garland, Blocked by G.O.P. From High Court, as Attorney General