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Merrick Garland Gets the Senate Confirmation That Once Eluded Him—as Attorney General


The Senate confirmed Merrick Garland as Attorney General of the United States on Wednesday, with even Minority Leader Mitch McConnell (R-Ky.)—who denied the former circuit judge an opportunity to be a Supreme Court justice half a decade ago—joining in the chorus of bipartisan approval.

Garland will become attorney general by a 70-30 vote margin.

Sen. Dick Durbin (D-Il.), the majority whip who chairs the Judiciary Committee that approved his nomination, kept unanimity in the Democratic caucus, won the support of 20 Republicans, and applauded the vote.

“Merrick Garland is determined to write a new chapter of public service in his life – and the Senate has finally given him that opportunity,” Durbin said in a statement. “He is the right person for this moment in history to lead the Department of Justice.”

Now the country’s top prosecutor, Garland may instead have been called justice had McConnell not blocked a hearing and a vote on his confirmation in 2016. The so-called McConnell rule, ostensibly forbidding the confirmation of justices in an election year, was later scrapped by the then-Republican majority during the confirmation of Justice Amy Coney Barrett.

Picking up where his former boss Barack Obama left off, President Joe Biden sent Garland to a Senate controlled by the Democrats for confirmation, and once the judge got a hearing, the rest was history.

Hearkening back to his experience prosecuting Oklahoma City bomber Timothy McVeigh, Garland connected that formative experience in a major domestic terrorism case to the Jan. 6th siege of the U.S. Capitol.

“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 wrote in his opening remarks before the Judiciary Committee on Feb. 22. “If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6—a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.”

Confirmation hearings provided a glimpse in what may shape up to be Garland’s other priorities. The judge expressed reservations with the death penalty, but he said that he would carry out whatever policy the Biden administration issues, including a possible moratorium.

The leader of a group dedicated to the reformation of harsh anti-drug laws expressed optimism that Garland’s Justice Department might bode a more scientific approach to federal narcotics enforcement.

“During this confirmation process, we were encouraged to hear that he agrees with us on many very important drug policy issues, such as allowing states to regulate marijuana without fear of federal intervention, eradicating the sentencing disparity between crack and powder cocaine offenses, and ending mandatory minimums,” Maritza Perez, the director of the Office of National Affairs for the Drug Policy Alliance, said in a statement.

But that praise was not without qualifications.

“Still, some of his comments around his support for prioritizing fentanyl prosecutions gave us pause, and we would encourage him to support ending mandatory minimums for drug offenses altogether,” Perez said. “This cruel sentencing practice has caused insurmountable harm in communities of color, while making no impact on the supply of illicit drugs.”

Despite winning overwhelming bipartisan support, Garland had his detractors among former President Donald Trump’s loyalists who were disappointed that the judge did not commit to leaving John Durham in his special counsel post to complete the previous administration’s work of discrediting the origins of the Russia investigation.

The Republican party’s far-right flank, including Senators Josh Hawley of Missouri, Mike Lee of Utah, and Ted Cruz of Texas, were among the lonely seven detractors who did not approve advancing Garland’s nomination from the Committee.

But they were in the margins, as were the GOP detractors for the full Senate vote.

Even their leader, McConnell, who obstructed Garland’s ascent before, registered his approval with an “aye” vote, even with significant—though decisively outvoted—dissent within his caucus.

(Screenshot from Garland’s Judiciary Committee hearing)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."