This time around, Judge Merrick Garland is getting his hearing.
Not only is President Joe Biden’s nominee for attorney general receiving a Senate audience, but his confirmation seems very likely, a second difference from his 2016 nomination to the Supreme Court, which was stymied by then–Majority Leader Mitch McConnell.
But there’s still an important question at stake in Garland’s nomination, and if confirmed, in his work as attorney general. The Trump presidency has both underscored and made more urgent a running debate over what exactly the U.S. Department of Justice is for.
“I think being attorney general has got to be the toughest job in the United States government, because you serve at pleasure of president, but you also have an obligation … to equal justice and impartial enforcement of the law,” Senator John Cornyn, the Republican from Texas, told Garland during a Senate Judiciary Committee hearing this morning.
That neatly frames the dilemma. For years, the department has veered, sometimes aggressively, between being more or less in thrall to the White House. Under President Donald Trump and Attorney General Bill Barr, the department was arguably less independent than at any time since John F. Kennedy’s brother led it. Trump asserted an “absolute right to do what I want to do with the Justice Department.” Barr, a longtime proponent of presidential power, generally endorsed and enabled Trump’s moves. Biden has promised to restore a greater degree of independence, and Garland’s prepared opening statement reads as an extended subtweet of the Trump-Barr Justice Department.