Merrick Garland for FBI director? Sure, let’s make this week dumber.

Merrick Garland for FBI Director? Sure, Let’s Make This Week Dumber.

Merrick Garland for FBI Director? Sure, Let’s Make This Week Dumber.

The law, lawyers, and the court.
May 11 2017 2:11 PM

Merrick Garland for FBI Director?

Welcome to the most amazing Republican troll job yet.

Merrick Garland
Judge Merrick Garland on Capitol Hill in Washington on May 25.

Joshua Roberts/Reuters

In the event you weren’t quite convinced that the White House could turn the governance of America into the world’s most elaborate game of Clue, some Republicans are now floating the name of Merrick Garland to replace ousted FBI Director James Comey.

That’s right, Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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Merrick Garland, the jurist who couldn’t get a hearing, or even a cup of cold coffee, from the Republican-controlled Senate after President Obama nominated him to the Supreme Court.

Merrick the Invisible Boy Garland.

Unless there is some other Merrick Garland who Ted Cruz has been hiding in a closet somewhere, this is the very same guy who was, as Orrin Hatch once put it, “a fine man,” a “consensus nominee,” and a “moderate” until he became, upon being nominated by Obama, part “of a voting bloc on the court that consistently upholds abortion on demand” and “the most anti-gun nominee in recent history.” So when Republican Sen. Mike Lee of Utah decides that poor Garland would be the perfect pick to be the next FBI director, one might reasonably wonder which Garland he’s talking about. Does this mean Garland is a “fine man” again? Or is this just the latest humiliation to be visited upon the man Republicans have spent the last year smacking around like a cat toy?

This all started on Tuesday, when University of Chicago law professor Geoffrey Stone puckishly suggested that Garland should be tapped as the new FBI director. Then, on Wednesday night, the idea was floated seriously, one supposes, by the Daily Caller, which recommended Garland on account of his “national reputation for thorough, vigorous prosecutions. He led the trial team that brought a successful death penalty case against Oklahoma City bomber Timothy McVeigh, and directed the prosecution of unabomber Ted Kaczynski from Washington. His ascent in the department was meteoric, and the legacy he left won bipartisan acclaim.”

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Great Scott! This man sounds amazing. Why hasn’t the nation heard tell of him yet?

The Daily Caller was quick to note that Garland’s move to the FBI would also clear a seat on the critically important D.C. Circuit, thus allowing Trump to appoint a conservative to a court on which at this moment there are seven Democratic appointees and four Republican ones. Deploying the same impeccable logic that allowed the White House to convince itself that Democrats would celebrate the firing of Comey because they like Hillary Clinton more than the rule of law, the Caller argued that Democrats would be insane hypocrites to oppose the choice of Garland for the FBI gig: “Senate Democrats joined the previous administration in offering uniformly glowing assessments of Garland’s quality and experience. None could now plausibly marshal a convincing case against him, after mounting a year-long campaign to secure him a spot on the nation’s highest tribunal.”

Lee then made his support for Garland public on Thursday morning, explaining in a TV interview, “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.” A Lee staffer told the Hill this suggestion was not meant to be hilarious, saying, “He’s eminently qualified and has the reputation needed to restore public confidence in [the] FBI.” A Fox Business News reporter then appeared to suggest that Vice President Mike Pence and White House Counsel Don McGahn are on board, too. It’s an idea everyone can get behind! Maybe Ruth Bader Ginsburg and Elena Kagan want the gig, too! They can all be FBI directors!

Never mind that last October, when explaining why he would not grant Garland so much as a hearing for the vacancy at the high court, Lee said Garland could not be independent enough to be trusted because “the last Democratic nominee to the Supreme Court … who voted independently was Byron White.” Lee cautioned that “Democrats vote in lock step. … That is how it works. I don’t think Merrick Garland would be any different.”

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So, Garland is independent enough to head the FBI but not independent enough to be on the high court. Or, wait. Maybe he wasn’t independent enough back in October but he’s independent enough now. Your guess is as good as mine.

Democratic Sen. Amy Klobuchar, for some reason, is buying what Lee is selling.

Putting aside this inexplicable Survivor-level reality show alliance with the enemy team, this Garland gambit seems to be an 11th-hour effort by Lee to add his name to the mix of young Republicans on the Senate Judiciary Committee who are grievously concerned about Trump’s actions and also running for the White House in 2020. (If there is still an America.)

Lee was a never Trumper back in the fall. And he’s doubtless a bit sad that Ben Sasse and Jeff Flake managed to get out ahead of him on looking grievously concerned about the Comey ouster this week. There is no cost to Lee in suggesting Garland for this job. It amounts, as Elizabeth Wydra of the Constitutional Accountability Center notes in an email, to little more than a headline that reads “Mike Lee wants to replace Merrick Garland with a conservative on the D.C. Circuit.”

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. But props to Lee for upping his game just in time for sweeps week. Your move, Sasse. Personally, I think Jared Kushner would make the best FBI director of all.

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