Merrick Garland, whose nomination five years ago to the Supreme Court was doomed, finally got a hearing Monday before the Senate Judiciary Committee—as President Joe Biden’s nominee for attorney general.
Judging from their statements, the panel’s Republican senators seemed likely to confirm Garland.
After President Barack Obama nominated Garland for the Supreme Court in March 2016, the Republican-controlled Senate denied him a Judiciary Committee confirmation hearing and vote, saying the election was eight months away and the new president should make the choice.
Although Garland didn’t answer all questions directly Monday as Biden’s nominee for attorney general, Americans got a glimpse about how he might have ruled on the high court regarding the Second Amendment and the death penalty.
Garland, currently a federal judge on the D.C. Circuit Court of Appeals, also answered questions about the new president’s son, Hunter Biden, calls to defund police agencies, and the Capitol riot.
Here are seven major highlights from his confirmation hearing.
1. Durham’s Probe and Hunter Biden
During William Barr’s confirmation hearing as President Donald Trump’s third attorney general, he pledged not to fire special counsel Robert Mueller, who was leading an investigation of Russian meddling in the 2016 presidential campaign and allegations that Trump colluded with Moscow.
Numerous Republican senators asked Garland whether he would make the same commitment not to terminate special counsel John Durham, who is investigating the Obama Justice Department and the origins of the FBI’s Russia probe. Durham’s investigation so far has led to the conviction of an FBI lawyer for lying on a surveillance application to a national security court.
“With respect to special counsel Durham’s investigation, I expect that he will be allowed to complete his investigation,” Sen. Charles Grassley, R-Iowa, told Garland. “If confirmed, will you commit to providing special counsel Durham with the staff, resources, funds, and time needed to thoroughly complete the investigation?”
Garland wouldn’t be definitive, only repeating that he had “no reason” to believe Durham wouldn’t be able to complete the investigation.
“So, Senator, I don’t have any information about the investigation as I sit here today, and another one of the very first things I’m going to have to do is speak with Mr. Durham and figure out how his investigation is going,” Garland said. “I understand that he has been permitted to remain in his position, and sitting here today, I have no reason to think that that was not the correct decision.”
When asked if he would release a report by Durham to Congress, as Barr released Mueller’s final report, Garland again was noncommittal.
“I am a great believer in transparency,” Garland said. “I would, though, have to talk with Mr. Durham and understand the nature of what he’s been doing and the nature of the report. But I am very much committed to transparency and to explaining Justice Department decision-making.”
Grassley continued to press the nominee for attorney general.
“When we discussed this over the phone, you told me that your predisposition would be to review the record before making a decision. That answer surprised me,” Grassley said. “It’s not an answer this committee would have accepted from Barr on Mueller. I think your predisposition, frankly, should be to protect and support the ongoing investigation as much as possible.”
With regard to resources for Durham’s probe, Garland said he would have to review what the former U.S. attorney for Connecticut needs.
“It’s because I’m sitting here and I don’t have any information about what he needs, including resources and allocation of resources,” Garland said. “But everything I know while I’m sitting here suggests that he should have those resources.”
He added: “My view about every investigation is that I have to know the facts before I can make those decisions. I have to be there and learn what’s going on.”
Judiciary Chairman Richard Durbin, D-Ill., said the matter should have been settled by the fact that Biden didn’t fire Durham as special counsel when he fired most other U.S. attorneys.
Grassley raised the ongoing federal investigation of the president’s son, Hunter, and his questionable business dealings with Chinese entities and others abroad.
“Have you discussed this Hunter Biden case with the president or anyone else?” Grassley asked.
“I have not,” Garland responded. “The president made abundantly clear in every public statement before and after my nomination that decisions about investigations and prosecutions would be left to the Justice Department. That was the reason that I was willing to take on this job. So the answer to your question is no.”
U.S. Attorney for Delaware David Weiss is conducting the investigation of Hunter Biden.
Weiss and Durham are the only lead prosecutors who Biden didn’t fire after taking office, as is the practice for new presidents.
2. Oklahoma Bombing and Capitol Riot
As a federal prosecutor himself, Garland famously gained a conviction of Timothy McVeigh, the Oklahoma City bomber.
In his opening remarks Monday, he drew a parallel with the Jan. 6 attack on the Capitol by pro-Trump rioters.
“From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government,” Garland said. “If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on Jan. 6—a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.”
During the hearing, Sen. Dianne Feinstein, D-Calif., asked: “What steps will you take to ensure that the perpetrators of the attack on our Capitol are brought to justice?”
Garland said the riot was “the most heinous attack on the democratic process that I have ever seen and one that I never expected to see in my lifetime.”
“One of the very first things I will do is get a briefing on the progress of this investigation,” he told Feinstein. “I intend to give the career prosecutors who are working on this matter all the resources they could possibly require to do this. At the same time, [I’ll] ensure we look more broadly at where this is coming from, what other groups there might be that could raise the same problem in the future. I know that the FBI director has made the same commitment.”
Sen. Sheldon Whitehouse, D-R.I., later asked about looking “upstream” from Capitol rioters and investigating who organized or funded the riot.
“We will pursue these leads wherever they take us. That’s the job of a prosecution,” Garland said.
3. ‘Room Under Law’ to Pursue Gun Control
Garland said that the Biden administration likely would pursue gun control to the extent that Supreme Court rulings allow.
“The president is a strong supporter of gun control, and has been an advocate all of his life—professional life—on this question,” Garland said. “The role of the Justice Department is to advance the policy program of the administration as long as it is consistent with the law.”
The high court allows for this, he argued.
“So far, we have a little indication from the Supreme Court as to what this means, but we don’t have a complete indication,” Garland said. “Where there is room under the law for the president’s policies to be pursued, I think the president should pursue them.”
As a judge, Garland voted on the losing side in the case of District of Columbia v. Heller.
A three-judge panel struck down a restrictive D.C. gun law in a 2-1 ruling, but Garland voted to have the circuit’s full complement of judges hear the case.
When that didn’t occur, the District appealed to the Supreme Court, which ruled 5-4 that the Second Amendment recognized the individual right to bear arms, in a 2008 opinion written by Justice Antonin Scalia.
In another gun case, Garland voted to uphold an executive action by President Bill Clinton establishing what some considered a de facto national requirement for gun registration.
Sen. Mike Lee, R-Utah, asked Garland whether he agreed with a dissenting view by Justice Clarence Thomas earlier this year about the high court’s denial of a gun rights case.
“Do you agree with Justice Thomas’ analysis in his dissent in the Rogers case that the Second Amendment right to bear arms certainly includes the right to curate operable firearms in public for self-defense?” Lee asked.
Garland said he would have to follow the Heller case.
“My view is totally controlled by the Heller opinion. In that case, Justice Scalia held that there was an individual right to keep and bear arms for self-defense,” Garland said, adding:
The subsequent McDonald case said that is a fundamental right that applied to the states as well. It is a right, as Justice Scalia said in the opinion, like all rights that is subject to some limitations. The court hasn’t given us a lot more to work with at this point.
4. Against Defunding Police, but…
Sen. Josh Hawley, R-Mo., asked Garland about the movement by activists on the left, and some in Congress, to defund police agencies on the local, state, and federal levels.
“I have to tell you, I think this sends exactly the wrong message to law enforcement who feel very much overburdened, underpaid, [and] under siege, and also sends the wrong message to folks who are suffering under this violent crime wave, especially working-class communities,” Hawley said.
Garland said he doesn’t support the idea of defunding police.
“President Biden has said he does not support defunding the police, and neither do I,” Garland told Hawley. “We saw how difficult the lives of police officers were in the body cam videos we saw when they were defending the Capitol.”
Biden’s position on defunding police was somewhat ambiguous during the presidential campaign.
Although Biden has said he is against complete defunding of police, he also has said he was “absolutely” supportive of cutting police budgets to provide more funds for social services.
Garland said he favored spending in other areas, but didn’t indicate that meant cutting police budgets.
“I do believe, and President Biden believes, in giving resources to police and helping them regain the trust of their communities,” Garland said. “I do believe, and I believe he believes as well, that we do need to put resources into alternative ways of confronting some actors—particularly those who are mentally ill and those who are suicidal—so that police officers don’t have to do a job they are not trained for and, from what I understand, they don’t want to do.”
5. ‘Great Pause’ on Death Penalty
Sen. Patrick Leahy, D-Vt., asked if Garland would favor a moratorium on the death penalty while Leahy and colleagues worked on legislation to eliminate the death penalty.
Garland secured the death penalty in the McVeigh case in Oklahoma City. McVeigh, who blew up a federal building in 1995, killing more than 100, was convicted in 1997. He was executed in 2001.
Garland talked about the two-decade pause in federal executions. In 2020, the Trump administration’s Justice Department lifted a moratorium and allowed the execution of six federal inmates on death row—all convicted well before Trump took office.
“As you know, Senator, President Biden is an opponent of the death penalty,” Garland told Leahy. “I have to say that over those almost 20 years the federal death penalthy had been paused, I have had great pause about the death penalty.”
He continued:
I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise, not only in death penalty convictions, but also in other convictions. I think a terrible thing occurs when someone is convicted of a crime they did not commit and the most terrible thing happens if someone is executed for a crime they did not commit.
It’s also the case that during this pause we’ve seen fewer and fewer death penalty applications anywhere in the country—not only in the federal government, but among the states. As a consequence, I’m concerned about the increasing randomness and almost arbitrariness of [the death penalty’s] application when you have so few cases.
The data is clear it has an enormously disparate impact on black Americans and communities of color, and something like half of the exonerations had to do with black men. All of this has given me pause, and I expect the president will be giving direction in this area. And if so, I expect it not at all unlikely that we will return to the previous policy.
6. Trans Sports a ‘Difficult Societal Question’
Sen. John Kennedy, R-La., asked Garland about biological males competing on female sports teams in high school, a question he sought to avoid answering.
Kennedy read a statement saying: “Allowing biological males to compete in an all-female sport deprives women of the opportunity to participate fully and fairly in sports and is fundamentally unfair to female athletes.”
“This is a very difficult societal question you’re asking right now,” Garland responded.
Kennedy retorted: “I know, but you’re going to be attorney general.”
Garland said the issue of transgender athletes is not something he has had the chance to review carefully as a legal matter.
“I may not be the one who has to make policy decisions like that. It’s not that I’m averse to it,” Garland said. “Look, I think every human being should be treated with dignity and respect.”
7. ‘Shameful’ Family Separation
Durbin, the committee’s chairman, raised the zero-tolerance policy of the Justice Department that led to separating children from adults when illegal immigrant families were caught at the southern border.
“Thousands of children were forcibly removed from their parents, separated, and many times lost in the bureaucracy,” Durbin said, adding: “This committee is going to hold oversight hearings to get to the bottom of this. Will you commit to cooperating with those investigations?”
Garland pledged cooperation.
“I think that oversight responsibility of this committee is one of its very most important things,” Garland said. “It’s a duty posed by the Constitution and I greatly respect it. I think the policy was shameful. I can’t imagine anything worse than tearing parents from their children. And we will provide all the cooperation we possibly can.”
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