But as Garland draws increasingly serious consideration, some defense lawyers and criminal justice reform advocates say they worry Garland’s record on the bench shows he is too deferential to the government and law enforcement — and perhaps would not be as aggressive about implementing the kind of dramatic changes they had hoped for.
“It’s certainly a safe choice,” said Kevin Ring, the president of Families Against Mandatory Minimums (FAMM), a criminal justice advocacy group. “It’s not an inspired choice.”
Garland is among three people, all former federal prosecutors, who remain under consideration by Biden for the attorney general job, according to people familiar with the discussions. The others are Sen. Doug Jones (D-Ala.), who lost his reelection bid, and former deputy attorney general Sally Yates.
People familiar with the matter said Biden is not expected to make a selection this week and that it is possible that when he reveals his decision, he also will announce picks for deputy attorney general, associate attorney general and solicitor general. These people spoke on the condition of anonymity to discuss internal deliberations.
A Biden spokesman declined to comment, as did all those who are said to be under consideration or their representatives.
Legal observers say all those being considered are qualified for the position, though all also have detractors. Civil rights leaders had pushed Biden to appoint a Black attorney general. All those under consideration are White.
Yates is a longtime Justice Department veteran with an extensive background in implementing criminal justice reform during the Obama administration. She ordered the closure of Justice Department private prisons and has won plaudits from civil rights leaders. But she also played a role in the FBI’s investigation of President Trump’s campaign, and some Senate Republicans already have said they would be likely to oppose her nomination — suggesting her confirmation could be a bruising battle.
As a U.S. attorney in Alabama under President Bill Clinton, Jones famously prosecuted members of the Ku Klux Klan who had bombed a Black church in Birmingham in 1963, killing four young girls. As a lawmaker, he co-sponsored the bipartisan criminal justice reform First Step Act. But some civil rights leaders have privately expressed concern to Biden’s inner circle that the Birmingham case, by itself, does not demonstrate the kind of track record on civil rights and criminal justice reform they would like to see.
Whoever Biden picks will face the task of restoring morale inside the beleaguered federal agency while trying to institute the left-leaning reforms Biden promised on the campaign trail. Biden’s selection is likely to face significant pressure to reverse Attorney General Jeff Sessions’s aggressive charging policy — which called for prosecutors to bring the most serious charges they could prove against defendants — and restore the policy that existed under Attorney General Eric H. Holder, which urged prosecutors to charge certain cases in such a way that would avoid mandatory minimum penalties.
While the Sessions policy faced significant external criticism, the Holder policy, enacted in 2013, was not embraced by federal prosecutors, and some would be likely to oppose its return. Criminal justice reform advocates, too, said they would like to see even more dramatic action to end mandatory minimum sentencing.
“That’s incredibly important, and they could go further than the Holder memo, but they should at least go that far,” said Ring, who himself was convicted and sentenced to 20 months in prison in a public corruption case involving lobbyist Jack Abramoff.
Garland’s judicial record first came under scrutiny in 2016, when Obama nominated him for the court vacancy created by the death of Justice Antonin Scalia.
A Congressional Research Service analysis found that Garland “tended to afford deference to law enforcement officers’ reactions in the field, with an eye toward protecting officers’ safety,” upholding police searches of vehicles that came under challenge. In one opinion, Garland noted that “appellate judges do not second-guess a street officer’s assessment about the order in which he should secure potential threats.”
One D.C. criminal defense lawyer, speaking on the condition of anonymity because of the possibility of having to appear before Garland or his colleagues, said that while Garland’s “integrity is unquestioned,” he was on the “wrong side” of criminal justice reform.
“There’s never a word a police officer or an FBI agent or a government prosecutor ever says that he questions,” the lawyer said. “He’s an enabler of the war on drugs and dismantling civil liberties in favor of police power, and that’s looking really bad right now.”
That view is not universal. The American Civil Liberties Union has a policy of not endorsing any nominees, but national legal director David Cole said of Garland: “I don’t see any real basis for concern from his judicial rulings that he wouldn’t be an attorney general committed to equal justice for all and criminal justice reform.” All federal appeals court judges, Cole said, generally side with the government.
Justin Driver, a former Garland clerk who is now a professor at Yale Law School, said Garland is not universally deferential to law enforcement or the government, and added, “His experience as a judge makes him well qualified to be the face of the sentencing reform issues that are on the top of minds for many people.”
D.C. lawyer Greg Smith, who has argued in front of Garland, said, “I do think he’s not the most lenient guy on the bench. He’s not necessarily the easiest sell for my clients. But I have invariably felt like he gave me a fair shake, and that he was eminently fair and a decent person to boot.”
Though Garland often sided with the government on cases emanating from the military prison at Guantánamo Bay, Cuba, he once rejected a military tribunal’s decision that a person in custody was an “enemy combatant.”
He also has consistently sided with the majority when it comes to checking executive power. He was part of the 7-to-2 majority in two legal battles this summer between President Trump and Congress. The full court affirmed Congress’s oversight powers and the House’s long-standing right to compel government officials to testify and produce documents. In the second case, the majority said lawmakers were not barred from going to court to challenge the Trump administration to block the diversion of billions of dollars to build the president’s signature southern border wall.
In August, Garland was again in the majority that allowed a judge to scrutinize the Justice Department’s decision to drop the criminal case against Trump’s former national security adviser Michael Flynn.
Erin Murphy, another former Garland clerk who is now a professor at New York University School of Law, said that Garland was not likely to support radical reforms but also would not resist practical changes.
“I don’t think he’s someone who’s just going to say, ‘Let’s take all the money out of our policing budget and reroute it to social services,” Murphy said. “I do think he’s going to say, ‘Hey, this program is working over here, so let’s see if we can replicate it, or scale it.’ ”
The Congressional Research Service analysis noted that Garland’s rulings on constitutional criminal procedure tended to be narrow, and the vast majority of his opinions “have involved relatively straightforward applications of Supreme Court or circuit precedent, or adherence to the uniform approaches of sister circuits.”
“There’s not really an opportunity for a judge to tell you how he feels about policy,” said Jamie Gorelick, a former deputy attorney general who worked with Garland in the Justice Department. “When we worked together, he understood the challenges of being in law enforcement, particularly when you have to make decisions on the spur of the moment, but he also was a very aggressive enforcer of civil rights.”
Rachel Barkow, a professor at NYU School of Law and the author of “Prisoners of Politics: Breaking the Cycle of Mass Incarceration,” said that though Garland is “certainly smart and honorable and decent,” it was “hard to see him way out front on criminal justice reforms,” on the basis of his record.
“I’m not sure that would be a top priority for someone like him, but you never know. I’m always willing to have people surprise me in good ways,” Barkow said.
Barkow said she is also concerned about Garland’s being nominated as attorney general for another reason: being confirmed would vacate his seat on the important D.C. Circuit, which might be asked to consider legal challenges to Biden administration policies. Many Democrats have worried that if Republicans retain the Senate majority, they would refuse to allow Biden to fill the seat, tilting the court’s balance to the right.
“Unless you really thought that Merrick Garland was uniquely the only person who could take that job, I don’t know why you would even consider it and leave that seat vacant,” Barkow said.
Ring noted that all of those under consideration are former federal prosecutors and that the shortlist included “no one who I think people who care about criminal justice reform are ecstatic about.”
Michael Waldman, the president of the Brennan Center for Justice at NYU School of Law, said Jones led a task force that recommended a way that prosecutors could reduce crime while reducing mass incarceration.
“Jones led a real breakthrough in criminal justice reform in giving a law enforcement voice saying we can have a system that doesn’t incarcerate so many people,” Waldman said.
Barkow praised Yates’s record on civil rights cases and examining problems with policing, though she said she thought a clemency initiative Yates managed under Obama did not go far enough. Yates’s supporters argue that to the extent the clemency initiative fell short, that was due to Obama’s preference for granting clemency after individual reviews of cases rather than issuing clemency to broad categories of offenders.
“We did over 1,700 commutations of largely drug defendants, and I think — and the president thought — this is a criticism basically not really of Sally but of the president’s program,” said former Obama White House counsel W. Neil Eggleston.
Yates also has worked on criminal justice reform after leaving government, serving on the advisory board of the Council on Criminal Justice, a think tank.
Adam Gelb, the president of that group, said that though prosecutors had generally “been among the loudest and strongest resisting changes to sentencing and corrections policy,” that was not his experience with Yates. Gelb said she pushed one of the organization’s task forces to recommend the elimination of mandatory minimum sentences for federal drug crimes.
“Her experience has made her deeply sensitive to the problems,” Gelb said.
Cole, of the ACLU, said that though all of those under consideration to be attorney general were federal prosecutors, that was typical for attorneys general, who command the nation’s law enforcement apparatus.
“I think, right now, whoever is the attorney general in a Democratic administration is going to be committed to criminal justice reform, because that is such a central concern of the Democratic Party and the Biden administration,” Cole said. “I don’t think there’d be a huge amount of difference in terms of the reforms that would be put in place between Doug Jones, Merrick Garland or Sally Yates.”
Devlin Barrett and Matt Viser contributed to this report.