The variety and seriousness of the issues facing the next attorney general are daunting and include depoliticizing enforcement and sentencing decisions, diversifying the department’s workforce, enforcing of civil rights and police reform, and making the pardon system more transparent. President-elect Joe Biden is taking his time, wisely in my view, to find the person whom he can trust to undertake all that while maintaining an appropriate separation between political aides at the White House and the Justice Department.
As Biden put it, there is no “obvious choice” for attorney general. Each of the leading candidates has deficits. Former acting attorney general Sally Yates may not get confirmed. Sen. Doug Jones (D-Ala.) may not have the experience to navigate and shake-up the department. Judge Merrick Garland, too moderate for some activists, would open up a seat on the U.S. Court of Appeals for the D.C. Circuit. With no standout pick, Biden may wait until the Georgia Senate races are held on Jan. 5 to assess Yates’s chances in the Senate.
Giving himself more time also allows Biden to consider whether there are other candidates for the top job who would combine experience and add diversity. Long-time U.S. attorney for the Southern District of New York Preet Bharara, former acting solicitor general Neal Katyal, New York state attorney general Letitia James, or progressive jurist and Justice Department veteran Nina Pillard from the D.C. Circuit would all fit the bill.
The passage of time also raises new challenges that might require someone with a different background. The stunning cyber-attack we recently learned about underscores the national-security aspect of the job. That would point to someone like Lisa Monaco, who helped vet Biden’s vice presidential candidates. She has decades of experience in the national security realm, both at the White House and at the Justice Department.
The Post also reports 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.” Waiting to announcing a senior team to lead the Justice Department certainly could minimize any gaps or shortcomings Biden’s attorney general pick might have. Garland may seem too moderate to satisfy some progressive civil rights groups, but announcing his name along with, for example, former head of the civil rights division Vanita Gupta as the deputy or associate attorney general would provide reassurance he will move aggressively on civil rights enforcement and police reform.
If Jones is the pick, he could be supported by a respected insider for deputy attorney general like Barbara McQuade, who served as a federal prosecutor in Michigan for nearly 20 years, or a progressive crusading state attorney general who brought dozens of successful suits against the Trump administration (e.g. Maura Healy of Massachusetts). That would send an unmistakable message that progressive reform will be the order of the day.
Including his solicitor general pick could bolster Biden’s selection as well. Deepak Gupta, an all-star progressive Supreme Court litigator and one of now-Sen. Elizabeth Warren’s first hires at the Consumer Financial Protection Bureau, would confirm that Biden’s Justice Department will aggressively defend his administration in the highest court.
It is not surprising that Biden is patiently exploring his options. The attorney general in an administration following the nightmarish Trump years might be Biden’s most critical personnel choice after vice president. Better to wait, consider a broad range of options and relevant issues, and roll out his choice with an impressive senior team.
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