Merrick Garland is one of the most respected jurists in the United States. He is the chief judge of the Court of Appeals for the D.C. Circuit, and served as associate deputy attorney general under President Bill Clinton, where he prosecuted Timothy McVeigh for the Oklahoma City bombing. He is a centrist who has won praise from both parties throughout his career.
He also rightfully should have been a Supreme Court justice. President Obama nominated him to replace the late Antonin Scalia in 2016, but under false pretenses, Senate Republicans denied him even a hearing.
Instead, they kept the seat vacant until Trump was elected and named Judge Neil Gorsuch — a right-wing extremist from the 10th Circuit who stripped contraceptive coverage from women and thinks disabled children have no right to public education. Republicans then rewrote Senate rules to force Gorsuch through.
It would be accurate to say this seat was stolen from Garland.
But Senate Majority Leader Mitch McConnell is not done abusing Garland. Now he is making a play to steal Garland’s current seat on the D.C. Court of Appeals. And he is doing it under the guise of extending an olive branch to Democrats on Russia.
Last week, Donald Trump fired James Comey as director of the FBI in the middle of the Russia investigation, sparking outrage and accusations of obstruction of justice. Trump now gets to name Comey’s replacement, and though many right-wing partisans have been floated, McConnell’s former chief of staff, Josh Holmes, stated in a panel on Fox News Sunday that his old boss may urge Trump to pick Garland for FBI director:
I think the Senate Majority Leader thinks that’s a fantastic idea. It’s somebody who obviously Democrats have significant trust and respect for, they’ve articulated that over the last year, and someone who can do the job impartially and I think he is going to be prepared to make that suggestion.
The idea, first proposed by Sen. Mike Lee (R-UT), is that this would assuage Senate Democrats’ fear that Comey’s replacement would be a Trump ideologue. It would allow them hope the Russia investigation will continue, and give them closure over the injustice of how Garland was treated last year. But in reality, naming Garland FBI director would be a kiss of death.
First, Garland is currently the most powerful judge in the United States after the Supreme Court justices. If he steps down to work at the FBI, a major vacancy opens for Trump to fill, and the D.C. Circuit will shift to the right.
Second, while Garland’s judgeship is a constitutionally protected lifetime appointment, FBI directors serve at the pleasure of the president. If Garland refused to give an oath of loyalty to Trump, or pursued the Russia investigation too aggressively, there would be nothing to stop Trump from simply firing Garland, too.
Senate Democrats should reject McConnell’s “offer” immediately, and if Trump takes up the idea, Garland himself should refuse the nomination. He has taken quite enough partisan abuse from Senate Republicans without them trying to trick him out of the judiciary altogether.