Why GOP Senators Are Pushing Merrick Garland for FBI Director

Trump urged to end crisis-of-confidence narrative, tap blocked Supreme Court nominee

by Brendan Kirby | Updated 15 May 2017 at 6:32 AM

What began as a seemingly absurd suggestion appears to be gaining steam — naming U.S. Circuit Judge Merrick Garland FBI director.

Sen. Mike Lee (R-Utah) raised the idea on Twitter last week and reiterated his suggestion to President Donald Trump during an appearance on “Fox News Sunday” with Chris Wallace.

“He’s very able, and he’s an able judge. I’m sure he’s a credible person. But I don’t think that’s what the bureau needs.”

“I’m absolutely serious about it,” he said. “This is a very different post [from] putting [him] on the Supreme Court of the United States. If President Trump were to nominate Merrick Garland as FBI director, I think his nomination would be welcomed by people on both sides of the aisle in the Senate.”

The White House is considering almost a dozen candidates, but Garland is not one of them. Candidates include Sen. John Cornyn (R-Texas), former New York City police Commissioner Ray Kelly, Acting FBI Director Andrew McCabe, former Michigan Rep. Mike Rogers, Rep. Trey Gowdy (R-S.C.), and several lesser-known career law enforcement officials.

But Lee said he has every reason to believe that the White House is considering Garland. And the judge has highly influential boosters. Sen. Orrin Hatch (R-Utah) told reporters that he, too, had suggested to the White House that Garland be considered.

“I didn’t say they should just pick him,” he said. “I know they’ve got some really excellent people, but I said, ‘Put Merrick in the list, too.'”

Josh Holmes, the former chief of staff for Senate Majority Leader Mitch McConnell (R-Ky.), said on the "Fox News Sunday" panel that his former boss likely would support Garland.

"I think the Senate majority leader thinks that's a fantastic idea," he said.

Some Democrats backed the idea as well. Sen. Amy Klobuchar (D-Minn.) praised the idea on Twitter, although she claimed a special prosecutor still is needed to oversee the investigation into possible collusion between Russian agents and Trump's 2016 campaign.

Former Harvard University President Lawrence Summers, who also served as then-President Bill Clinton's treasury secretary, tweeted: "Merrick Garland as FBI director would avert what could be a long national nightmare. Trump should propose. Dems should insist."

Garland, indeed, has qualifications for the job. His record as a judge on the D.C. Circuit Court of Appeals generally has favored law enforcement. And before taking the bench, he served as a federal prosecutor in the U.S. Attorney's Office in Washington. He was one of three prosecutors who oversaw the prosecution of then-D.C. Mayor Marion Barry on drug charges.

As deputy assistant attorney general under then-President Bill Clinton, he supervised high-profile cases, including the Oklahoma City bombing, the Unabomber case, and the Atlanta Olympics bombing.

It would be hard for Democrats to oppose Garland, about whose blocked nomination to the Supreme Court they complained bitterly. Republican senators refused to give Garland even a confirmation hearing, arguing that the American people should have a role in that decision through the presidential election.

Several experts expressed doubt about whether Trump would pick Garland or whether the judge would agree to give up a lifetime appointment to what generally is considered the nation's second-most important court.

"It's highly unlikely that it would be someone like Merrick Garland," former U.S. Attorney Joseph diGenova told LifeZette. "He's very able, and he's an able judge. I'm sure he's a credible person. But I don't think that's what the bureau needs."

William Otis, who served in the White House Counsel's Office under President George H.W. Bush and as counselor to the head of the Drug Enforcement Administration under President George W. Bush, said Garland would have give up his role as chief judge to serve at the pleasure of the president. Then again, he said, Garland might find it appealing to take on the many and varied challenges facing the FBI.

"I don't know whether Garland would be interested in the job," he said. "From my perspective, being FBI director is a more interesting job than being an appellate judge."

Ken Boehm, chairman of the board of directors at the National Legal and Policy Center, said Garland could tamp down some of the hysteria surrounding Trump's dismissal of Comey.

"It would stop some of the craziness in town," he said. "I can see the political value of getting somebody who was named by [former President Barack] Obama to the Supreme Court."

But Boehm also questioned whether Garland would be willing to take the job.

"If I were Garland, having been nominated for the Supreme Court by Obama and so forth, I think I would turn it down, because he's more of a jurist than an administrator," he said.

Otis said the selection should be completely non-political, however. And even though it is not Garland's fault, Otis added, he has been at the center of one of the biggest political controversies of the past year and a half.

"The idea behind it is right," he said. "But Garland is not the right candidate."

Otis said the job should go to "someone no one has ever heard of before."

He offered a suggestion that fits that bill — Julie Carnes, whom Obama named to the 11th U.S. Circuit Court of Appeals in Atlanta. The Senate confirmed her 94-0.

Otis, who served with Carnes on the U.S. Sentencing Commission, said she is a pro-law enforcement Democrat.

Boehm said the FBI is a huge, sprawling bureaucracy that requires top-notch administrative and managerial experience, as well as a background in law enforcement.

"I'm willing to bet they hit those two markers," he said. "The last think you want to do is stir up partisan waters by picking the wrong person."

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