Slate columnist Dahlia Lithwick brilliantly shut down Sen. Mike Lee of Utah for his “suggestion” that Democrats should back Judge Merrick Garland of the D.C. Circuit as James Comey’s replacement at the Federal Bureau of Investigation. Lee however, should be careful what he wishes for.
As Lithwick points out, the jest here is in mocking Democrats by suggesting Obama’s blocked Supreme Court nominee to run the bureau as someone they couldn’t possibly oppose. Unspoken but perspicuous is the wish to (at worst) score points off Democrats and (at best) free up a seat on the nation’s most important appeals court for a nominee from the Federalist Society weapons locker. “There is no cost to Lee in suggesting Garland for this job,” Lithwick notes. “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.’”
Because the alternative was grading exams, however, I found myself wondering what would happen if the offer was made—and if Garland then politely said, “I accept, but first I must ask the chief judge of the Circuit for a multi-year leave of absence. Oh—wait! I AM the chief judge! Leave granted. Subpoenas go out Monday.” Garland would then move to the J. Edgar Hoover Building for a year or two (long enough, say, to complete some unfinished counterintelligence investigations about Russia) before returning to a seat that was never vacant.