Joe Biden has selected Judge Merrick Garland to serve as his attorney general, according to two people with knowledge of the decision.
Biden selected Garland over former Sen. Doug Jones (D-Ala.) and former deputy attorney general Sally Yates, choosing to elevate the chief judge of the United States Court of Appeals in D.C. to run the Justice Department.
In 2016, President Barack Obama nominated Garland to serve on the Supreme Court, but his nomination languished in the GOP-controlled Senate at the end of the former president’s term. In recent weeks, Garland has been recusing himself from cases involving the federal government, fueling speculation that he was a leading candidate for the job.
In a Republican-controlled Senate, Jones was viewed as the easiest candidate to get confirmed given his strong relationships across the aisle. Garland was also considered a risk in that it would be difficult to confirm a replacement for him on the appellate court.
But with Democrats expected to have won the majority with a pair of upset victories in Georgia, confirmation issues with other candidates largely dissipated. The announcement of the selection could come as early as Thursday, Sen. Dick Durbin (D-Ill.) told reporters on Wednesday.
The Biden transition declined to comment.
Garland has served on the D.C. Circuit Court of Appeals for more than two decades after receiving a nomination from President Bill Clinton in 1997. He won confirmation that year by a vote of 76 to 23.
When Justice Antonin Scalia unexpectedly died in early 2016, President Barack Obama turned to Garland for what the then president hoped would be a consensus pick for the vacancy. But Senate Majority Leader Mitch McConnell denied Garland a hearing or a vote, leaving the nomination hanging for nearly a year. When Donald Trump won the election in 2016, any prospect for Garland’s confirmation ended.
Prior to his nomination as a judge, Garland served as a top Justice Department official and as a prosecutor on high-profile murder cases.
Should Garland be confirmed, he will be handed a number of thorny issues, including whether and how to investigate Trump for episodes of potential obstruction of justice described in Special Counsel Robert Mueller’s final report, as well as allegations of tax fraud and other crimes related to Trump’s business dealings.
Citing a long-standing Justice Department legal opinion precluding criminal charges against a sitting president, Mueller did not offer a definitive conclusion on the obstruction charges, although former Attorney General William Barr said none of the incidents would have amounted to a crime even in the absence of the opinion. However, the opinion does not preclude prosecution of a former president.
As Garland was under consideration as a potential attorney general pick, he took some unusual steps to seek to remain above ethical reproach. Beginning in early December, he recused from a series of civil and criminal justice cases involving the U.S. government, including appeals related to a string of executions the Trump administration is carrying out in the weeks leading up to the change in administration.
Biden’s pick of Garland carries a benefit for Democrats that may have made him more attractive in light of the expected victory of Democrats in the Georgia Senate runoff races Tuesday: It opens a seat on the D.C. Circuit, which is widely considered the second-most powerful court in the country.
With Democrats likely to win control of the Senate — and with the filibuster for low- and mid-level judicial nominations eliminated in 2013 — confirming a successor to Garland should be relatively easy. Some close to Garland thought he was likely to declare senior status soon and open a vacancy on the court during the new administration, regardless of the outcome in Georgia and whether he was tapped for the attorney general slot.
The Garland pick is likely to be received warmly among Hill Democrats who have remained aggrieved by the refusal of Senate Republicans to give him a hearing in 2016. But some Senate Democrats had been pushing for Jones to be nominated, with a number of them writing a letter to Biden and his transition team urging the president-elect to nominate their former colleague. The letter, which was first reported by HuffPost, was organized by Sen. Sherrod Brown (D-Ohio) was sent to Biden’s team just after Christmas.
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