Senate Majority Leader Mitch McConnell endorsed an unconventional candidate for FBI director on Tuesday: Merrick Garland. McConnell told the press that the DC Circuit Court of Appeals judge, whose nomination to the Supreme Court was killed by McConnell last year, "has a deep background in criminal law," and stated that he's recommended Garland to President Trump.
McConnell wasn’t the first Republican to tout Garland for the joy. Sen. Mike Lee (R-UT) offered the bipartisan-sounding suggestion on Thursday, telling Fox News, "I would imagine that this might be a post that might interest [Garland] and it might be a post that he could serve in very effectively. This is someone who has a lot of bona fides as a prosecutor, he’s a prosecutor’s prosecutor, and he’s someone who’s got likely allies as a potential FBI director nominee in both political parties."
Lee elaborated on the idea on Twitter, adding that he thinks Garland’s appointment would eliminate the need for an independent prosecutor looking into Trump’s Russia ties: “Instead of a special prosecutor, @realDonaldTrump should nominate Merrick Garland to replace James Comey.”
His Democratic colleague, Sen. Amy Klobuchar of Minnesota, quote-tweeted Lee, adding, “Good idea @SenMikeLee. Former prosecutor Merrick Garland for FBI Director is great idea. Need special prosecutor too.” Connecticut Democrat Richard Blumenthal said he’d support Garland (though he doubts Garland would want the gig), and Vice President Mike Pence and White House Counsel Don McGahn are reportedly on board too.
To be clear, Garland is more than qualified for the job. As Geoffrey Stone, a liberal University of Chicago law professor who floated Garland’s name Tuesday night, notes, Garland worked for three years as assistant US attorney in DC, where he worked on the drug case against Mayor Marion Barry; did a stint in the independent counsel's office during the Reagan administration; and served for four years in the Clinton Justice Department. He supervised the Unabomber and Oklahoma City bombing cases. That's a very similar background to Comey (a US attorney turned deputy attorney general), and to FBI Director Robert Mueller before him (also a US attorney, and an assistant attorney general for the Criminal Division).
One could imagine Garland seeing the overwhelming bipartisan support for his selection and deciding that it was his duty to accept.
He should not.
He should look at the angel on his shoulder telling him to accept the president’s call to serve and then grab and strangle that angel to death. This is an insulting Republican ploy and Garland should be smarter than to fall for it.
If Garland were to accept, he would still serve under a president who has shown himself to be willing to fire FBI directors who displease him for whatever reason, and to manufacture a pretext that such a firing is for cause. Why would Garland ever agree to work under such a condition?
More to the point, why would Garland give up a lifetime judgeship and help move the second most important court in America — a court that handles countless regulatory and national security issues emanating from Washington and is currently considering a case on EPA climate regulations that are crucial for the future of the planet — substantially to the right? Why would he fall for these extremely obvious Lucy/Charlie Brown/football hijinks?
As Slate’s Dahlia Lithwick put it, “Garland probably won’t want to give up his lifetime tenure as the chief judge of the second-most important court in the land, and surely the most significant bulwark against Trump administration overreach, in exchange for a 12-minute gig on The Apprentice before he uses the wrong color highlighter and gets fired by a crazy person.”
It turns out, per the Atlantic’s Garrett Epps, that Garland could theoretically take the job without resigning his judgeship. That would certainly be a fun and wacky situation. But the FBI needs a full-time director, and it’s all but inconceivable that Garland would accept the job without resigning from the court.
Sen. Sheldon Whitehouse (D-RI) saw through this gambit right away. Per my Vox colleague Jeff Stein on the Hill, Whitehouse rolled his eyes when told by a reporter that Garland had been floated as Comey's replacement. "I don't want to change the balance of the DC circuit over this," Whitehouse said. Sen. Brian Schatz (D-HI) put the objection in GIF form:
On Merrick Garland for FBI head, this seems...unserious. pic.twitter.com/5q3JsFDjUO— Brian Schatz (@brianschatz) May 11, 2017
Conn Carroll, a spokesperson for Sen. Lee, insists this has nothing at all to do with a Republican desire to stack the DC Circuit Court of Appeals with conservatives. "He has the reputation necessary to restore trust in the FBI. This is not about the DC Circuit," Carroll told Fox News, because he apparently thinks you’re stupid.
If Republicans had a genuine desire to reach across the aisle for a respectable Democrat capable of leading the bureau, there are any number of other people they could choose. They could pick Obama's Assistant Attorney General for the Criminal Division, Leslie Caldwell, or her predecessor Mythili Raman, or Obama's Assistant Attorney General for Justice Programs Karol Mason, who now runs John Jay College of Criminal Justice in New York. They could push Trump to put aside his pride and pick Preet Bharara, the US attorney for Manhattan whom Trump fired for seemingly no reason in March.
It’s curious, then, that Lee, with no desire in his heart to change the DC Circuit, managed to overlook all of them and focus in on someone whose appointment would increase Republican influence in the judiciary. One can only ponder why.