Garland cruises through confirmation hearing as GOP support solidifies
President Joe Biden’s pick to lead the Justice Department, D.C. Circuit Judge Merrick Garland, appears to be coasting towards easy confirmation after a relatively low-key outing before the Senate Judiciary Committee on Monday.
Republicans did use the opportunity to gingerly push Garland to commit to allowing federal prosecutors to press on with politically sensitive investigations into the Department of Justice probe of Donald Trump’s ties to Russia and into the business affairs of Biden’s son, Hunter.
But beyond vowing that politics would play no role in his decisions, Garland made few promises. Despite that, there was little acrimony and many Democrats and Republicans on the panel appeared to treat his confirmation almost as a foregone conclusion.
During Monday’s session, Republicans seemed reluctant to get too confrontational with Garland, perhaps in part to demonstrate that their decision to block his confirmation to the Supreme Court in 2016 was nothing personal towards him.
One senator, Mike Lee of Utah, even used some of his time with Garland to try to land shots against other Biden nominees for the Justice Department.
And when Garland said he wasn’t really up to speed on immigration issues because they rarely come before the D.C. appeals court he serves on, there was no outraged rebuke from GOP senators — just pleas to take a serious look at the matter.
While some were braced for a marathon hearing, it petered out just after 4 p.m.
Following the session, Sen. Chuck Grassley (R-Iowa) said the muted reactions of his GOP colleagues suggested that Garland will win approval.
“I believe so,” Grassley told POLITICO. “There were people that weren’t totally satisfied with his answers, but i didn’t hear anybody get really irritated. … For the most part, he answered pretty well.”
Even some of the most conservative Senate Republicans said Garland will get the nod.
“That certainly seems likely,” Texas Sen. Ted Cruz said. “I thought he did fine. It was frustrating in that he answered very few questions. He approached it more like a judicial nominee dodging every question.”
A senior Democrat on the panel, Sen. Richard Blumenthal of Connecticut, declared that the judge’s confirmation was essentially a lock.
“Judge Garland is about as sure a bet as you can have in the Congress these days that he will be confirmed. He has navigated these questions with extraordinary adroitness and aplomb,” Blumenthal said.
The contrasts with more contentious confirmation hearings in the recent past were numerous.
While President Donald Trump’s most recent attorney general, William Barr, faced a slew of questions at his hearing about whether and when he would recuse from pending probes, no one asked Garland whether he would step aside from the ongoing investigation into tax issues related to Hunter Biden or any other matter.
In response to a question from Grassley, the panel’s ranking Republican, Garland did declare that he’s had no discussion with the president about the ongoing probe into his son.
“The president made abundantly clear in every public statement before and after my nomination that decisions about investigations and prosecutions will be left to the Justice Department,” he said. “That was the reason that I was willing to take on this job. So, the answer to your question is: no.”
And asked whether he would commit to providing Special Counsel John Durham the resources to complete his investigation into the origins of the FBI’s Trump-Russia probe, Garland said he needed to learn more but saw no justification at the moment for removing Durham, who has been at work since 2019 but was given the full autonomy of a special counsel last October.
“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,” Garland told Grassley. “From what I know now, which is really very little to make any determination … I don’t have any reason to think that he should not remain in place.”
However, Garland also appeared to suggest some of the issues Durham was assigned to explore already have been adequately investigated by the Justice Department’s inspector general as part of a report that found widespread errors and omissions in the FBI’s handling of Foreign Intelligence Surveillance Act applications.
When Sen. John Cornyn (R-Texas) pressed Garland on whether he was familiar with the controversial and disputed “dossier” that former British intelligence officer Christopher Steele produced on former President Trump prior to the 2016 election, the judge replied: “Only what I have read in the newspapers.”
But the executive summary of the inspector general report on FISA abuses — a document that Garland moments earlier claimed to have read — contains more than 140 references to Steele and repeatedly discusses the FBI’s handling of Steele’s so-called Trump dossier.
The Jan. 6 insurrection also loomed over Garland’s confirmation hearing. If confirmed, Garland will oversee the DOJ investigation into the storming of the Capitol.
Garland said he wasn’t privy to the details of the ongoing probe of the attack, but understood the inquiry to be massive in scope. “I can assure you that this will be my first priority,” he declared.
Garland seemed receptive to Speaker Nancy Pelosi’s proposal for a congressionally authorized commission to investigate the events of Jan. 6. However, he sounded the first public note of caution from the Biden administration that such an effort not undermine the DOJ’s ongoing investigation.
“The only thing that I would ask, if I were confirmed, is that care be taken that” any independent commission probe “not interfere with our ability to prosecute individuals and entities” tied to the insurrection, Garland said. “This is a sensitive issue about disclosing operations which are still in progress.”
Republicans also probed Garland’s changing stance on the death penalty. Sen. Tom Cotton (R-Ark.) noted that while Garland highlighted his work as a prosecutor in the Oklahoma City bombing probe he oversaw 25 years ago, the death sentences he sought for that crime would be unavailable under the Biden administration since the president has said he now opposes capital punishment.
“In that individual case, I don’t have any regret, but I have developed concerns about the death penalty in the 20-some years since then,” the judge said, speaking about the Oklahoma attack, which killed 168 people.
Garland, who said he now has “great pause” about the death penalty, declared that Biden has clear authority to announce a “moratorium” on its use in the federal system, in accordance with pledges he made during the campaign.
One of the few moments of tension during Monday’s hearing was when Lee asked Garland about past statements from two of Biden’s other nominees to the Justice Department, Vanita Gupta and Kristen Clarke. Garland forcefully defended what he called his “leadership team” and seemed to bristle when Lee asked him whether anti-Semitic comments from a nominee would be relevant. “You know my views about anti-Semitism,” the judge replied sharply. “I’m a pretty good judge about what an anti-Semite is.”
Garland’s confirmation hearing for attorney general comes more than six weeks after Biden announced his nomination. The committee will vote on his nomination March 1. Senate Judiciary Chairman Dick Durbin (D-Ill.) said Monday he hoped for a final confirmation vote next week, “fingers crossed.”
Garland, the former chief judge on the powerful D.C. Circuit Court of Appeals, was nominated by then-President Barack Obama to fill a vacant seat on the Supreme Court in 2016. Senate Republicans blocked his nomination then, but many now seem poisted to support his attorney general nomination.
Garland would take over a DOJ still reeling from four tumultuous years under Trump, who broke from decades of precedent by frequently criticizing department leaders in public and attacking the decisions of prosecutors and FBI agents.
Burgess Everett contributed to this report.