Five Points About What We Learned From Merrick Garland’s Confirmation Hearing

UNITED STATES - February 22: Federal Judge Merrick Garland speaks during his confirmation hearing to be U.S. Attorney General before the Senate Judiciary Committee in Washington on Monday, Feb. 22, 2021. (Photo by Caroline Brehman/CQ Roll Call)
UNITED STATES - February 22: Federal Judge Merrick Garland speaks during his confirmation hearing to be U.S. Attorney General before the Senate Judiciary Committee in Washington on Monday, Feb. 22, 2021. (Photo by Ca... UNITED STATES - February 22: Federal Judge Merrick Garland speaks during his confirmation hearing to be U.S. Attorney General before the Senate Judiciary Committee in Washington on Monday, Feb. 22, 2021. (Photo by Caroline Brehman/CQ-Roll Call, Inc via Getty Images) MORE LESS
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February 22, 2021 6:03 p.m.

The confirmation hearing for Merrick Garland — the moderate, well-liked federal appellate judge who was infamously denied a Supreme Court seat by Senate Republicans — did not exactly provide the kind of contentious, partisan fodder that accompanied past attorney general nominations. But that doesn’t mean Democrats and Republicans passed up an opportunity to use the proceedings to take swipes at department conduct during previous administrations.

The hearing, which did not even last the full work day, only featured a few exchanges that could be described as confrontational. From the get-go, there were signals from both sides of the aisle that Garland was on a glide path to Senate approval, with Sen. Richard Blumenthal (D-CT) calling his confirmation “as sure a bet as you can have in the Congress these days.”

Nevertheless, Garland gave some revealing glimpses into how he’ll approach his role as the department’s leader.

Garland, a former DOJ prosecutor, put a stake in the ground on some clear issues where the department, with him at the helm, will depart from the attitudes of the Trump administration. And he explained how he saw the department’s role in addressing the Jan. 6 insurrection.

Here are five takeaways from his confirmation hearing: 

The Department’s Response To The Capitol Mob Will Go Beyond Just The Riot

Garland repeatedly made clear that he believed that the department’s response to the Capitol mob should be holistic, and that it should see the riot as having occurred in a larger context: Right-wing extremist groups are on the rise in the U.S.

He said that if confirmed, he would direct the department to “look at where this is coming from, what other groups there might be that could raise the same problem in the future.”

He also left on the table the possibility of prosecuting those who did not themselves ransack the Capitol but funded, organized or otherwise aided the mob. Democrats asked him point blank not to rule out investigating those individuals, and he affirmed he would follow where the facts took him.

Garland Will Take DOJ In New Directions From His Predecessors

With Republicans struggling to land a punch on Garland — and many of them not even trying — it would be easy to miss how Garland did draw a contrast between how he’d lead the department and the approach of Trump’s attorney generals.

He said he backed the use of police consent decrees, which Attorneys General Barr and Sessions both railed against. He also validated the notion of disparate impacts being an indication of systemic racism. The Trump administration had tried to curtail the use of disparate impact, which measures whether a policy disproportionately affects a minority community, in civil rights enforcement. 

Garland was perhaps most candid when he was asked about the death penalty, which the Trump administration revived in federal cases. Garland said he had grown to feel a “great pause” towards its use during the several years the federal government had put a moratorium on it. 

There Were Some Half-Hearted Attempt To Pin Garland Down On The GOP’s Favorite Fixations

Showing flashes of their more aggressive selves, Republican members frequently gestured in the direction of their favorite scandals, policy fixations and investigations — the Hunter Biden probe, the Durham investigation, reforming section 230 of the Communications Decency Act — but didn’t really lean into attempts to tie Garland to them. 

At one point, Durbin stepped in to address the bounty of Durham probe questions coming from his Republican colleagues. 

“In this situation with Durham, the administration is clearly committed publicly to allowing Durham to complete his investigation,” Durbin said. The probe centers on an investigation into the origins of the FBI’s probe into the Trump campaign’s Russian connections. 

“I don’t know that any additional comments are needed beyond that, though you’ve been asked many, many times that question,” Durbin added, addressing Garland. 

Sen. Josh Hawley (R-MO) asked Garland if he supported defunding the police, a phase Republicans have been eager to pin to Democrats of all stripes. 

“President Biden has said he does not support defunding the police — and nor do I,” Garland replied.

Dems Used The Hearing To Jab At Trump-Era DOJ Fiascos

Democrats used the forum to air some of their biggest grievances too, asking questions about the Trump administration’s “shameful” family separation policies, the former President’s pardon abuse and the Trump DOJ’s resumption of federal executions.

They used Garland’s nomination and Monday’s hearing specifically to narrate a return to normalcy for the DOJ after the rampant politicization of Trump’s department. Durbin set up a final question to let Garland elaborate on the point: 

Republicans Claimed It Was Democrats Who Actually Politicize DOJ

Republican senators found within themselves a burning concern that the Department of Justice would be politicized under an Attorney General Merrick Garland, a qualm they did not have while Bill Barr was using the office to act like former President Trump’s personal lawyer. 

“My sole criterion for voting for your confirmation is your pledge to make sure that politics does not affect your job as attorney general,” Sen. John Cornyn (R-TX) said. 

Sens. Hawley and Ted Cruz (R-TX) claimed that it was actually Democrats who politicized the department under the “Obama-Biden” administration, and expressed their eyebrow-raising hope that Garland would right the wrongs committed then. Neither of them mentioned the many scandals — Roger Stone’s sentencing recommendation, the dropping of charges against Michael Flynn — that emerged from the blatant politicization of the department under Trump.

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