Biden Transition News, Attorney General Nomination, January 7, 2021

WHAT

On Thursday, January 7, President-elect Biden announced his nomination of Merrick Garland to be Attorney General, Lisa Monaco to be Deputy Attorney General, Vanita Gupta to be Associate Attorney General, and Kristen Clarke to be Assistant Attorney General for the Civil Rights Division.

 

Merrick Garland, Attorney General

Garland is the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, and has served as a judge on the court since 1997. Garland was nominated to the Court by President Clinton and confirmed by the Senate 76-23[1].

Garland is perhaps best known for his unsuccessful nomination to the Supreme Court. Following the death of Justice Antonin Scalia in 2016, then-President Obama nominated Garland to fill the vacancy. Senate Republicans refused to hold a confirmation hearing or even meet with Garland, arguing that the vacancy should not be filled until after the outcome of the November election was known. Garland’s nomination expired after 293 days.

Prior to his judgeship, Garland was an Assistant United States Attorney in the U.S. Attorney’s Office for Washington, D.C., before serving in the Clinton administration, first as Deputy Assistant Attorney General in the Criminal Division of the Department of Justice, then as Principal Deputy Associate Attorney General under Deputy Attorney General Gorelick, where Garland supervised several high-profile terrorism cases, including the Oklahoma City bombing, the Unabomber, and the Atlanta Olympics bombings.

Garland’s judicial rulings are lauded by some as a model for neutral judges, with his opinions rarely drawing dissent, and rarely writing dissents. He is known to be somewhat deferential to the government when ruling on criminal cases, though he takes a broad view of the First Amendment and is relatively generous with litigants bringing FOIA cases.

Garland began his career as a law clerk for Judge Friendly of the 2nd Circuit Court of Appeals, then as a clerk for Justice Brennan. After his clerkship, Garland was Special Assistant to Attorney General Civiletti in the Carter administration, before joining the law firm of Arnold & Porter. Garland earned his bachelor’s from Harvard and his J.D. from Harvard Law School.

 

Lisa Monaco, Deputy Attorney General

Monaco served as the Assistant to the President for Homeland Security and Counterterrorism during the Obama administration where she advised the President on counterterrorism policy and strategy and coordinated the homeland security-related activities with the Executive Branch.

Prior to working in the White House, Monaco served 15 years at the Department of Justice. Monaco was appointed Associate Deputy Attorney General in 2009. In 2011, Monaco become the first woman Assistant Attorney General for National Security after being confirmed by the Senate.

Monaco was a law clerk to the Honorable Jane R. Roth on the United States Court of Appeals for the 3rd Circuit, Counsel to the Attorney General, an Assistant United States Attorney for the District of Columbia, and as counsel and Chief of Staff to FBI Director Robert Mueller following the 9/11 terrorist attacks. Monaco received the Attorney General’s Award for Exceptional Service for her work on the Enron Task Force.

Monaco currently serves as a Distinguished Senior Fellow at the New York University School of Law’s Reiss Center on Law and a partner at O’Melveny, where she serves as co-chair of the Data Security and Privacy group and a member of the White Collar Defense and Corporate Investigations Practice Group. Monaco is a graduate of Harvard University and the University of Chicago Law School.

 

Vanita Gupta, Associate Attorney General

Gupta currently serves as the President and CEO of the Leadership Conference on Civil and Human Rights, a nonprofit organization focused on federal civil rights policy.

Gupta served as Acting Assistant Attorney General for the Civil Rights Division from October 2014 to January 2017. During Gupta’s time in the division, she advanced constitutional policing and criminal justice reform and the office prosecuted a wide variety of issues including hate crimes and human trafficking. She also focused on policies including disability rights, protecting the rights of LGBTQ individuals, ensuring voting rights for all, and fair housing.

Before joining the Department of Justice, Gupta was a staff attorney then Deputy Legal Director and the Director of the Center for Justice at the ACLU. Gupta received her undergraduate degree from Yale University and her law degree from New York University School of Law.

 

Kristen Clarke, Assistant Attorney General for the Civil Rights Division

Clarke began her civil rights career as an attorney in the Civil Rights Division at the Department of Justice. She also served as the head of the Civil Rights Bureau for the New York State Attorney General’s Office. During her time in the office, she led sweeping civil rights enforcement on criminal justice, LGBTQ issues, fair housing, and more. During her time in office, the Bureau also secured historical agreements with banks addressing unlawful redlining.

Clarke currently serves as the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. She also served at the NAACP Legal Defense and Educational Fund. Clarke graduated with an A.B. from Harvard University and a J.D. from Columbia Law School.

IMPACT

Garland’s nomination is a safe choice. From a confirmation perspective, Garland has previously been confirmed by the Senate on a bipartisan basis (albeit two decades ago) and does not have a track record of colorful comments or positions that could be fodder for confirmation theatrics.

Garland’s vanilla history does not mean his confirmation will be smooth. The Department of Justice has been at the center of controversy for the last four years, from investigations into the Trump campaign for potential collusion with Russia, controversial positions taken on federal cases like challenges to the Affordable Care Act, and new calls from Republicans for scrutiny into the recent elections. Expect the confirmation hearings to be riddled with fireworks, even if they are not of Garland’s creation.

From a logistical perspective, Garland and the team nominated today again bring familiarity with the Department of Justice into the Department’s leadership. All have spent time working in the Department and will be prepared to use its authority.

A few areas to watch for policymaking:

  • Switching sides – Look for the Department of Justice to quickly switch sides on a number of pending legal matters, including challenges to the Affordable Care Act (though arguments have already been made to the Supreme Court), Medicaid work requirements, and the International Pricing Index.
  • New focus on civil rights – Gupta led the Department’s civil rights division under President Obama and is currently the President of the Lawyers’ Committee for Civil Rights. We can expect her to bring an active agenda forward on those matters.
  • Election reform – Republicans have made clear that they believe fraud was rampant in the last election, with a focus on mail-in voting. However, Democrats have also scrutinized Republican-led efforts in some states to tighten voter eligibility requirements. Look for a Biden Department of Justice to combat these types of efforts.
  • Cannabis – three years ago (on January 4, 2018), then-Attorney General Jeff Sessions rescinded the Cole Memorandum, which essentially stated that the Department of Justice would not prosecute marijuana-related activity that was compliant with state law. Since then, many more states have legalized cannabis for either medical or non-medical use, or both, in some cases. If confirmed, the Garland Justice Department will need to decide whether to reinstate the Cole memo, or stick with the Trump-era rescission.

 

RESOURCES

  1. Press Release via Biden Transition Website

 

[1] Roll Call Vote 34, 105th Congress 1st Session.