Joe Biden’s selection of Judge Merrick Garland as his attorney general likely gives the president-elect the opportunity to begin reworking the powerful U.S. Court of Appeals for the District of Columbia Circuit.
Garland, who received the nod from Biden on Wednesday, was previously nominated to the Supreme Court by President Barack Obama after Justice Antonin Scalia’s death in 2016. Senate Majority Leader Mitch McConnell blocked his nomination for nearly a year, paving the way for President Trump to fill the vacancy on the high court with Justice Neil Gorsuch.
But now, by elevating Garland to the Justice Department, Biden has a shot at putting someone on a court that often acts as a stepping stone to the Supreme Court. Chief Justice John Roberts, as well as Justices Clarence Thomas and Brett Kavanaugh, served on the D.C. circuit before ascending to the Supreme Court. So did the late Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg.
Liberal court reform activists are pushing Biden to nominate a black woman to fill Garland’s spot, should he be confirmed by the Senate, which, with a tiebreaker vote from Vice President-elect Kamala Harris, will be narrowly controlled by Democrats.
Shortly after Democrats secured their majority with two Senate wins in Georgia, activists began pushing Biden to make good on his campaign promise to fill court vacancies with members of minority groups.
“Georgia results resolve the concerns about Garland’s DC circuit seat,” tweeted Brian Fallon, executive director of Demand Justice, a liberal court reform organization, after the Garland pick was announced. “Time to elevate Ketanji Brown Jackson?”
Brown Jackson, a former clerk for Justice Stephen Breyer, is among a number of black women whom liberal and left-leaning activists have lobbied Democrats to consider for appellate court positions in the hopes that they may land on the Supreme Court. At the same time, many activists have also begun pushing for Breyer’s retirement, to give Biden a chance to put someone younger on the high court.
Biden, however, has kept mum on the specifics of his plans with regard to Garland’s seat, as well as other judicial vacancies. Although his transition team has asked the Senate for nomination recommendations, stressing that the incoming president wants a list of names “as soon as possible,” Biden has not touted a list publicly, striking a sharp contrast to Trump.
This strategy is likely in keeping with Biden’s cautious approach to constructing his government, said Michael Gerhardt, a law professor at the University of North Carolina. Biden does not want to risk the possibility of losing both his attorney general and a court pick if he has a list containing names too left-leaning for moderates, Gerhardt told the Washington Examiner.
“He likely will not make any announcement before Garland is confirmed in order to avoid any risk that the nominations together might be more difficult to get through than they would have been if he had done one at a time,” he said of Biden.
Biden’s transition team did not respond to request for comment.
Garland is likely to sail through confirmation for attorney general. Even many Republicans have praised him. South Carolina Sen. Lindsey Graham, who led the Senate Judiciary Committee in the Republican majority, called Garland a “sound choice,” noting his “great character, integrity, and tremendous competency in the law.