Sen. Mike Lee (R-Utah), a sometime opponent of President Trump, used a tweet and a morning TV appearance to float an idea that would pay dividends for Republicans — nominating Judge Merrick Garland to run the FBI.
“He was one of the lead prosecutors who was behind the Timothy McVeigh prosecution in Oklahoma City,” Lee said during an interview on Fox News. “This is a prosecutor’s prosecutor. This is someone who’s got allies in both parties as a potential nominee.”
Lee quickly got a bipartisan attaboy from Sen. Amy Klobuchar (D-Minn.), whom Democrats see as a potential candidate for president.
The praise from a Democrat stopped at that, for a simple reason: Taking Garland off the U.S. Court of Appeals for the D.C. Circuit would open a seat to be filled by Trump. Since Democrats ended the filibuster for lower-court nominees, it would take just 51 Republican votes to replace Garland with a conservative, shrinking the Democratic-appointee advantage on the court from 7 to 4 now to 6 to 5.
A key reason Democrats lowered the vote threshold in the first place was to confirm President Barack Obama’s stalled nominees, shifting the balance of what’s widely seen as the nation’s second-most influential court. Garland’s prize if he were named FBI chief: a job that a capricious-seeming president could fire him from at any time.
Lee’s idea was laughed off by Klobuchar and other Democrats within hours.
But it trafficked in conservative media — including in some outlets that had proposed the Garland move before Lee did. (“Trump’s allies in conservative legal circles would relish the prospect of another GOP appointee,” wrote Daily Caller legal reporter Kevin Daley on Wednesday afternoon.) By noon, Fox Business’s Charles Gasparino was breaking news of a Lee meeting at the White House, reporting that Vice President Pence was warm to the idea of offering the FBI job to Garland.
If so, that would be the latest attempt to coax a liberal out of a job that a Republican could fill. The Trump administration let it be known last year that Sens. Heidi Heitkamp (D-N.D.) and Joe Manchin III (D-W.Va.) were under consideration for Cabinet posts, offers that would have created special elections for their seats in states that the president won by landslides.
The decision to leave a lifetime post for a possible trap door at the FBI would be not Pence’s but Garland’s. The judge, who spent most of a year in limbo as Republicans blocked his nomination for the Supreme Court — an infinitely more desirable job — would need to ignore some obvious power politics and their consequences on his bench to even consider the job.
Tellingly, when Fox’s interviewer mentioned the potential effect on the court, Lee dismissed it as a detail.
“That really would be up to him,” Lee said. “But I would imagine that this would be a post that might interest him.”
Later in the day, Sen. Orrin Hatch (R-Utah) told reporters that he agreed with Lee — Garland at least deserved to be considered for the job.
“Merrick’s a very fine man,” said Hatch. “I like him a lot.”
Asked about Garland’s seat, Hatch acknowledged that an opening would be helpful for Republicans.
“That would leave a vacancy, but don’t worry — the Democrats don’t have to worry,” he said. “They packed the D.C. circuit with three liberals. They shouldn’t cry at all.”
Hatch met with Garland when he was a nominee for the Supreme Court; Lee, like most Republicans, refused to meet Garland in person.