Biden to name former Obama Supreme Court pick Merrick Garland as his attorney general

Key Points
  • News of President-elect Biden's intentions came a day after Senate runoff elections in Georgia that will determine the balance of power in the upper chamber.
  • Garland would face pressure from liberals to prosecute President Trump after Biden takes office.
  • Garland and his deputies would play a pivotal role in the Biden administration's approach to police reform.
Judge Merrick B. Garland speaks after being nominated to the US Supreme Court in the Rose Garden at the White House, March 16, 2016 in Washington.
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President-elect Joe Biden will name federal appeals court Judge Merrick Garland to be his attorney general, two people familiar with the matter told CNBC on Wednesday.

Former President Barack Obama nominated Garland to the Supreme Court, but his nomination was blocked by the Republican Senate, which refused to even hold hearings for the judge.

Garland, a widely respected lawyer, has served as chief judge on the D.C. Circuit Court of Appeals since 2013. The 68-year-old appointee of former President Bill Clinton is considered a centrist, though he has often ruled conservatively in criminal cases.

Obama nominated Garland to replace Justice Antonin Scalia in 2016 after Scalia died, but Republicans in the Senate objected to the election year appointment, earning the lasting fury of Democrats.

President Donald Trump ultimately filled Scalia's seat in 2017 with Justice Neil Gorsuch, the first of three Trump appointees to the high court. Biden has pledged to nominate a Black woman to the bench.

The longtime judge is expected to face the task of depoliticizing the Justice Department after four years in which President Donald Trump has often turned to the agency to go after personal rivals.

That job is complicated by the fact that, if confirmed, Garland will face pressure from liberals to prosecute Trump after Biden takes office on Jan. 20. Biden has said he will leave such decisions to the Department of Justice and that he intends to support the independence of his attorney general.

Another test would be how he would handle an investigation into Hunter Biden, the incoming president's son. Hunter Biden revealed last month that a federal investigation is underway into his taxes.

Garland and his deputies would play a pivotal role in the Biden administration's approach to police reform.

After last year's protests against police brutality, Biden promised to expand the power of the Justice Department to investigate police departments accused of misconduct and force them to reform through consent decrees.

The news of the president-elect's intentions came a day after Senate runoff elections in Georgia that will determine the balance of power in the upper chamber.

Democrats had expressed concern that if Garland were confirmed as attorney general and the GOP still controlled the Senate, then Republicans would block Biden's efforts to replace him on the appeals court.

Democrat Raphael Warnock is projected to defeat Republican Kelly Loeffler in Tuesday's Senate runoff in Georgia, while Democrat Jon Ossoff has claimed victory over Republican David Perdue, although NBC News said that race was too close to call.

If both Democrats are successful, the party will hold 50 seats in the 100-person body and Vice President-elect Kamala Harris will be able to cast tie-breaking votes.

Garland could not immediately be reached. An email seeking comment from the D.C. circuit appeals court was not returned.

In addition to overseeing federal investigations, the attorney general has a wide portfolio overseeing the Justice Department. Biden has said he will beef up protections for civil rights and add resources to the department's agencies responsible for rooting out violations.

Biden is expected to name top civil rights leaders to the Justice Department as well.

An official told NBC News that the president-elect is expected to name Lisa Monaco as deputy attorney general, Vanita Gupta as associate attorney general, and Kristen Clarke as assistant attorney general overseeing civil rights.

Monaco is a longtime Justice Department official who served as Homeland Security Adviser to Obama. Gupta, a former leader of the DOJ's civil rights division, is president and CEO of the Leadership Conference on Civil and Human Rights. Clarke is president and executive director of the National Lawyers' Committee for Civil Rights Under Law.

Activists have pressed Biden to name a diverse Cabinet, and he has done so to an extent, though the pick of Garland, who is White, for a job overseeing civil rights enforcement is likely to be a let down for some on the left.

Biden's pick for defense secretary, Lloyd Austin, would be the first Black person to hold the role. Pete Buttigieg, Biden's transportation secretary pick, would be the first openly gay Cabinet member. And Rep. Deb Haaland, D-N.M., whom Biden has picked to be interior secretary, would be the first Native American Cabinet secretary.

Garland would likely to be confirmed with bipartisan support in the Senate. Sen. Lindsey Graham, R-S.C., said in a statement on Wednesday that he believed Garland "would be a sound choice" as attorney general.

"He is a man of great character, integrity, and tremendous competency in the law," said Graham, the top Republican on the influential Judiciary Committee.

Garland has served on the D.C. appeals court since 1997, when he was confirmed by a vote of 76-23.

He earned praise from the conservative Chief Justice John Roberts during Roberts's 2005 confirmation hearing. Roberts said at the time, "Any time Judge Garland disagrees, you know you're in a difficult area." 

Garland attended Harvard University and Harvard Law School and clerked for then-Justice William Brennan on the Supreme Court. The Obama White House said in 2016 that Garland paid for law school by "taking a summer job as a shoe store stock clerk, selling his comic book collection and counseling undergraduates."

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