In a Republican-controlled Senate, Jones was viewed as the easiest candidate to get confirmed given his strong relationships across the aisle. Garland was also considered a risk in that it would be difficult to confirm a replacement for him on the appellate court.
But with Democrats expected to have won the majority with a pair of upset victories in Georgia, confirmation issues with other candidates largely dissipated. The announcement of the selection could come as early as Thursday, Sen. Dick Durbin (D-IL) told reporters on Wednesday.
Biden will also nominate Lisa Monaco as deputy attorney general, Vanita Gupta as associate attorney general, and Kristen Clarke as assistant attorney general for civil rights, per people familiar with the personnel decisions. The news of those pending appointments was first reported by the Associated Press.
Monaco served as Obama’s homeland security adviser and has been heavily involved in Biden’s transition. Gupta worked as U.S. assistant attorney general for civil rights in the Obama administration and is currently the president of the leadership conference on civil and human rights. Clarke is the president of the civil rights group, Lawyers’ Committee for Civil Rights Under Law, and previously ran the civil rights bureau in the New York State Office of the Attorney General.
The Biden transition declined to comment.
Garland has served on the D.C. Circuit Court of Appeals for more than two decades after receiving a nomination from President Bill Clinton in 1997. He won confirmation that year by a vote of 76 to 23.
When Justice Antonin Scalia unexpectedly died in early 2016, President Barack Obama turned to Garland for what the then president hoped would be a consensus pick for the vacancy. But Senate Majority Leader Mitch McConnell denied Garland a hearing or a vote, leaving the nomination hanging for nearly a year. When Donald Trump won the election in 2016, any prospect for Garland’s confirmation ended.
Prior to his nomination as a judge, Garland served as a top Justice Department official and as a prosecutor on high-profile murder cases.
Should Garland be confirmed, he will be handed a number of thorny issues, including whether and how to investigate President Donald Trump for episodes of potential obstruction of justice described in Special Counsel Robert Mueller’s final report, as well as allegations of tax fraud and other crimes related to Trump’s business dealings.
Citing a longstanding Justice Department legal opinion precluding criminal charges against a sitting president, Mueller did not offer a definitive conclusion on the obstruction charges, although former Attorney General Bill Barr said none of the incidents would have amounted to a crime even in the absence of the opinion. However, the opinion does not preclude prosecution of a former president.
The new attorney general will also face a series of challenges to reorient a department that has taken a decidedly skeptical approach to criminal justice reform efforts and the Black Lives Matter movement. He also will face major challenges in restoring morale at the department, which has seen a number of high-profile staff departures during the Trump years.
As Garland was under consideration as a potential AG pick, he took some unusual steps to seek to remain above ethical reproach. Beginning in early December, he recused from a series of civil and criminal justice cases involving the U.S. government, including appeals related to a string of executions the Trump administration is carrying out in the weeks leading up to the change in administration.
Biden’s pick of Garland carries a benefit for Democrats that may have made him more attractive in light of the expected victory of Democrats in the Georgia Senate runoff races Tuesday: it opens a seat on the D.C. Circuit, which is widely considered the second-most powerful court in the country.
With Democrats likely to win control of the Senate—and with the filibuster for low- and mid-level judicial nominations eliminated in 2013—confirming a successor to Garland should be relatively easy. Some close to Garland thought he was likely to declare senior status soon and open a vacancy on the court during the new administration, regardless of the outcome in Georgia and whether he was tapped for the AG slot.
Garland has an unusually broad base of support among Democratic lawyers in Washington D.C. thanks to a large number of law clerks who have gone on to high-profile jobs at the Justice Department and at prominent law firms.
“Merrick Garland is the perfect choice for this job,” said former Garland clerk Karen Dunn, who also served in the White House Counsel’s Office under Obama and is now a partner at law firm Paul Weiss. “He will restore independence and integrity to the Justice Department, be the people’s lawyer, not the president’s lawyer, and will come in with the respect of the career public servants who advance the cause of justice every day.”
The Garland pick is likely to be received warmly among Hill Democrats who have remained aggrieved by the refusal of Senate Republicans to give him a hearing in 2016. But some Senate Democrats had been pushing for Jones to be nominated, with a number of them writing a letter to Biden and his transition team urging the president-elect to nominate their former colleague. The letter, which was first reported by HuffPost, was organized by Sen. Sherrod Brown (D-Ohio) was sent to Biden’s team just after Christmas.