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Merrick Garland will finally face the Senate: Attorney general confirmation hearings start Monday

Judge Merrick Garland, U.S. President-elect Joe Biden’s nominee to be U.S. Attorney General, speaks as Biden listens while announcing his Justice Department nominees at his transition headquarters in Wilmington, Delaware, January 7, 2021.

Kevin Lamarque | Reuters

Merrick Garland is finally getting his day before the Senate.

Garland, President Joe Biden‘s pick to be attorney general, will appear before the Senate Judiciary Committee on Monday for the first day of his confirmation hearings, scheduled to continue through the week.

The hearings were delayed amid some partisan squabbling while Democrats and Republicans struggled to come to a power-sharing agreement in the evenly divided Senate.

Those delays came after Garland was denied any hearings at all in 2016, when former President Barack Obama nominated the centrist judge to the Supreme Court following the death of Justice Antonin Scalia, the conservative stalwart.

The federal appeals court judge is expected to be confirmed swiftly — likely by the start of March — though he may face some uncomfortable grilling, primarily from the panel’s Republicans.

Sen. Chuck Grassley, R-Iowa, the judiciary committee’s ranking Republican, has indicated that Garland will be quizzed about how he will handle the federal probe into Biden’s son, Hunter Biden, related to the younger Biden’s finances. Hunter Biden has disclosed that federal prosecutors are examining his “tax affairs.”

All-in-all, though, the hearings are likely to be low-drama. In a statement, Democratic Committee Chairman Sen. Dick Durbin of Illinois called Garland “a consensus pick who should be confirmed swiftly on his merits.”

Question of independence

Garland has been a judge on the D.C Circuit U.S. Court of Appeals since 1997 and served as the chief judge on the court, considered the most important except the Supreme Court, from 2013 until 2020.

The 68-year-old, if confirmed, will lead the Department of Justice, which will be crucial to Biden’s agenda for criminal justice reform. Biden has also said that he hopes that, by choosing Garland, he will be able to demonstrate a contrast from President Donald Trump’s use of the department for self-serving aims.

“We need to restore the honor, the integrity, the independence of the DOJ of this nation that has been so badly damaged,” Biden said during a January speech introducing Garland.

“I want to be clear to those who lead this department who you will serve: You won’t work for me. You are not the president’s or the vice president’s lawyer,” Biden added. “Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation.”

Trump’s four-year tenure was marked by controversy in the Justice Department.

His first attorney general, Jeff Sessions, was ultimately forced to resign in 2018 after Trump attacked him for months over his decision to recuse himself from former special counsel Robert Mueller’s Russia probe.

William Barr, Trump’s final attorney general, was accused of tampering in the prosecutions of Trump allies Roger Stone and Michael Flynn, and of issuing misleading statements related to Mueller’s final report.

Garland has pledged to maintain his independence.

“The essence of the rule of law is that like cases are treated alike: That there not be one rule for Democrats and another for Republicans, one rule for friends, another for foes, one rule for the powerful, and another for the powerless,” he said last month.

Civil rights scrutiny

It is likely that Democrats will push Garland to address how his views on criminal justice align with Biden’s pledge to boost racial equity in the legal system. Civil rights groups have noted that in his rulings as a judge, Garland has demonstrated a conservative bent.

“Judge Garland very rarely ruled in favor of defendants in Fourth Amendment cases and has generally found law enforcement action to be reasonable under the circumstances,” the American Civil Liberties Union wrote in a 2016 report while Garland was under Supreme Court consideration.

The report also found that Garland’s “notable sentencing decisions similarly demonstrate a pro-prosecution perspective.”

During his campaign, Biden pledged to reduce the number of people incarcerated in the U.S. and to root out inequities in sentencing.

In his first days in office, he ordered the Justice Department to limit its contracting with private prisons and made other promises related to racial equity in the department. While the administration has been in place for a month, rights groups have been pushing it to do more.

The Capitol riot

An early test for Garland could come as a result of the Jan. 6 riot on the Capitol, which has led to increasing calls for a new domestic terrorism law to help the Federal Bureau of Investigation — a part of the DOJ — go after members of the pro-Trump mob that waged the attack.

Federal prosecutors have said the investigation into the attack is likely unprecedented in DOJ history, and that more than 200 people have already been charged.

While law enforcement associations have come out in support of such legislation, civil liberties groups have suggested that such bills tend to fall hardest on already persecuted communities, like Black and Muslim people.

Garland is expected to draw on his work in 1995 overseeing the prosecutions stemming from the Oklahoma City bombing, which was perpetrated by White supremacists.

In addition to assembling the trial team in that case, Garland drafted the Justice Department’s critical incident response plan and “oversaw the United States Marshals Service’s vulnerability assessment of federal facilities,” according to paperwork he filed with the Senate as part of his confirmation process.

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