On Thursday, Senator Mike Lee (R-Utah) publicly floated the idea that Chief Judge of the D.C. Circuit Court of Appeals Merrick Garland should become the next head of the Federal Bureau of Investigation. Lee also pitched this to Trump administration officials while at the White House on Wednesday discussing tax reform. It’s somewhat ironic that Lee is now touting the qualifications and independence of Garland, with whom he refused to meet in March of 2016 after nominated to the Supreme Court by President Obama to replace Antonin Scalia, who unexpectedly passed away.
President Trump infamously fired James Comey last week for a multitude of reasons, including the handling of the bureau’s investigation into potential collusion between Russia and the president’s campaign team. President Trump will soon be embarking on his first foreign trip on Friday and hopes to publicly announce Comey’s replacement before departing for Saudi Arabia. Time is certainly of the essence and President Trump has a tremendous amount of political capital riding on his upcoming pick to lead the FBI.
There is no question that Garland is more than qualified to lead the FBI. In addition to being a federal judge and current position on the D.C. Circuit Court of Appeals, he is a former federal prosecutor and Department of Justice employee. Garland worked as an assistant U.S. attorney in the District of Columbia and oversaw the successful convictions of Oklahoma City bomber Timothy McVeigh and Unabomber Ted Kaczynski.
The mentioning of Garland’s name by Senator Lee has drawn widespread bipartisan support from both sides of the political aisle. Republican Senators Mitch McConnell (Kentucky), Orrin Hatch (Utah), and Lindsay Graham (South Carolina) all reacted positively. On the opposite end of the political spectrum, Democratic Senators Amy Klobuchar (Minnesota), Richard Blumenthal (Connecticut), and Tom Udall (New Mexico) similarly seemed amenable to this unconventional selection. Garland was eminently qualified to sit on the Supreme Court, but sometimes politics have a way of blowing up these scenarios.
Although Garland would make an ideal Director of the FBI in a political vacuum, this is not a realistic option for plethora of reasons. Senator Lee’s proposal should hence be viewed as a shiny object of distraction rolled into a tongue-in-cheek tweet. As the chief judge of the D.C. Circuit Court of Appeals, Garland has a lifetime tenure on the second most powerful court in the country. FBI directors are supposed to serve 10-year terms, but President Trump just fired one only three years into his tenure and has a penchant for ousting administration officials on a whim.
Due to the appointments of President Obama, liberal justices currently enjoy a 7-4 majority on the D.C. Circuit Court of Appeals. President Trump would undoubtedly replace Garland with a reliable conservative to further narrow the ideological balance of this important court that commonly handles crucial regulatory and taxation issues. During the transition process, President Trump briefly considered inviting Democratic Senators Joe Manchin (West Virginia) and Heidi Heitkamp (North Dakota) into his cabinet because they hail from deep red states that he won handily and their successors would likely add to the GOP edge in the Senate.
At least eight FBI director candidates were interviewed this weekend by Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. As many as 11 people are being considered and despite the wishes of Senator Lee, Garland won’t even make this extended list. Republican Senator John Cornyn of Texas is considered a frontrunner that is seriously considering the position if offered.
Since Senator Lee threw out a far-fetched proposal not based in political reality, an alternative one equally as improbable should be considered. President Trump should pledge to nominate Merrick Garland to the Supreme Court in the event of another vacancy. In addition to being more experienced and qualified than his first candidate Neil Gorsuch, Garland is an older moderate that is unlikely to have a 30-year tenure on the Court. Senate Democrats will never quit harping about a seat they feel was stolen while Garland remains denied this opportunity.
Republican senators Chuck Grassley (Iowa) and Ted Cruz (Texas) think Justice Kennedy could retire this summer and the moderate Garland would be an ideal replacement to determine the ideological balance of the Court. This olive branch could help President Trump reach out to persuadable voters ahead of the 2018 midterm elections and even make aging justices Ruth Bader Ginsburg and Stephen Breyer feel more comfortable about retirement and their potential successors. Finally, President Trump would also get to appoint Garland’s replacement on the D.C. Circuit Court of Appeals. This obviously won’t happen, but is a more fair and equitable hypothetical scenario than the one recently proposed by Senator Lee.
Aaron Kall is director of debate at the University of Michigan and editor/co-author of “Debating The Donald.”