The gracelessness of Senator Ted Cruz has become all too familiar, but there are still moments when it is worth noting. One of them came on Monday, in the confirmation hearing for Merrick Garland, of the District of Columbia Court of Appeals, who is President Biden’s nominee for Attorney General. Garland had been giving a careful answer to a question about the future of the investigation, led by the U.S. Attorney for Connecticut, John Durham, into the origins of the F.B.I.’s investigation of the Trump campaign’s Russia connections, when Cruz interrupted him. “Judge Garland, with all due respect—and I recognize you’ve been a judge for twenty-three, twenty-four years—judicial nominees sit in that chair and decline to answer just about every question senators pose them. Saying, ‘Well, as a judge, I can’t commit to how I would rule on any given case.’ And that’s appropriate.” Cruz paused, knitting his eyebrows, as if contemplating his own perspicacity, and then continued, “You’re not nominated to be a judge in this position.”
Did he think that Garland, or anyone else, had forgotten that? Garland, of course, had been nominated by President Barack Obama to be a judge at the highest level—a Justice on the Supreme Court—after Antonin Scalia died in February, 2016, nine months before the Presidential election. Cruz and his colleagues, led by then Majority Leader Mitch McConnell, refused to even hold a hearing for him, keeping the seat empty for Donald Trump to fill. McConnell then rushed through the confirmation of Amy Coney Barrett when Ruth Bader Ginsburg died just a month and a half before the 2020 election. But Cruz pressed the point, informing Garland that, as “a constitutional scholar,” he must “understand fully well the difference between Attorney General versus an Article III judge.” Again, we all do. (Article III is the section of the Constitution that establishes the federal judiciary.) Cruz, incidentally, was present in the Committee hearing room, although he could have asked questions remotely, as a number of other senators did. But perhaps, having been thwarted in his attempt to have a nice getaway in Cancún, he viewed a trip to Washington, D.C., as a consolation. Millions of people back in Texas were without power for days; many still lack reliable water.
Cruz’s arrogance is hard to match, but he was not the only Republican whose treatment of Garland’s history was, to put it generously, lacking in perspective. “I had something to do with that,” Chuck Grassley, of Iowa, said—a great deal, as the chairman, at the time, of the Judiciary Committee. (With the change in control of the Senate, he is now the ranking minority member; Dick Durbin, of Illinois, is now the chair, bypassing Dianne Feinstein, of California, who had been the ranking member.) “Yes, it’s true I didn’t give Judge Garland a hearing,” Grassley said. His tone was irritable, but it generally is. “I also didn’t mischaracterize his record. I didn’t attack his character. I didn’t go through his high-school yearbook. I didn’t make his wife leave the hearing in tears.” Was that the only other choice? Grassley was referring to Brett Kavanaugh’s confirmation hearings, although it was Neil Gorsuch, not Kavanaugh, who took what would have been Garland’s seat.
Obama nominated Garland, in part, because he was a widely respected moderate with an unquestioned reputation for thoughtfulness, judicial knowledge, and a measured temperament—with nothing on his record approaching, say, even a Neera Tanden tweet—all of which were on display Monday. He also has a distinguished record as a prosecutor and as the supervisor of the successful case against the Oklahoma City bomber, Timothy McVeigh, who killed a hundred and sixty-eight people, including nineteen children. Obama, in other words, chose someone the Republicans had no excuse to object to, and they scuttled his nomination anyway. (He appears headed for an easy confirmation this time.) And yet Grassley seemed to think that he was owed not only a pass but congratulations for his forbearance. “Just because I disagreed with anyone being nominated didn’t mean that I had to be disagreeable to that nominee. Unfortunately, that is not always the way it works in this town.” It was as if a hearing as wrenching and raucous as Kavanaugh’s could simply be ordered up, and as if what had happened to Garland was not profoundly disagreeable, and, indeed, painful. A more straightforward acknowledgment came from Patrick Leahy, Democrat of Vermont, whose appearance was initially delayed for technical reasons (Durbin said Leahy had to get into “Zoom range”): “I wish five years ago we would have seen you seated there for your Supreme Court nomination,” Leahy told Garland.
It is hard to know what Garland’s Supreme Court hearing would have been like. There might have been fewer of the attacks on Eric Holder, who served as Obama’s Attorney General, that the Republicans engaged in on Monday. John Kennedy, Republican of Louisiana, might still have asked for Garland’s help in understanding what “institutional racism” means (Garland spoke about looking for patterns as well as for specific incidents of discrimination), and whether someone who breaks the law is “a sinner in the moral sense or a sick person.” (Garland said that “the kind of crime” was relevant in answering that question, and also spoke about mercy—a value he discussed, at length, with Cory Booker, Democrat of New Jersey.)
And Garland also would likely, and rightly, have been asked about his role in the decision to pursue the death penalty in the Oklahoma City case, as he was on Monday. McVeigh was killed by lethal injection, in 2001; Tom Cotton, Republican of Arkansas, asked Garland if he regretted his execution. “Look, I supported that,” Garland said. “I don’t have any regret. But I have developed concerns about the death penalty in the twenty-some years since then.” The sources of his concern, he said, are the issue of convicted defendants who are later exonerated, the arbitrary way that the penalty is applied, and the “disparate impact on Black Americans and members of other communities of color.” McVeigh’s death was followed by another federal execution in 2001 and one in 2003, after which there was a seventeen-year gap in federal executions, driven largely by the issues that Garland cited. (There have been hundreds of state executions in that period, though the number is falling.) The Trump Administration put aside that restraint in July, 2020, and the federal government executed thirteen people between then and the end of Trump’s term, including two in the days after he was impeached—a rush to kill. Garland noted that the Biden Administration was considering a moratorium on federal executions.
Garland said, in his opening statement, that he would “supervise the prosecution of white supremacists and others who stormed the Capitol on January 6th, a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.” It will be fascinating to see what questions the events of that day generate the next time there are confirmation hearings for a Supreme Court Justice. But, for now, senators on both sides acknowledged that a part of Garland’s task would be to confront the specific legacy of Trumpism—including with regard to family separations at the border, which Garland called “shameful”—even if, for a number of the Republicans, that recognition took the form of resentment. Josh Hawley, of Missouri, who had charged ahead with his challenge to the Pennsylvania electoral-vote tally even after the mob assault, used part of his time to complain about how Trump’s White House interns might suffer career setbacks because of the public response to the attack; it wasn’t clear what Garland was supposed to do about that.
Many Republicans pressed Garland to disavow the politicization of the Justice Department, which they attributed not to Trump but to Obama. Garland said that prosecutions would not be driven by politics. He was asked, time and again, about the Durham investigation, which Republicans hope will be embarrassing for Democrats. William Barr, Trump’s second Attorney General, had committed not to fire Robert Mueller, who was then in the midst of his investigation into possible Russian interference in the 2016 election—would Garland make the same promise about Durham? Garland said that, although he needed more information before committing, he didn’t see why the investigation couldn’t be completed.
He was also asked, repeatedly, about the investigation that Michael Horowitz, the inspector general of the Justice Department, conducted into a number of the Foreign Intelligence Surveillance Act, or FISA, warrants that the F.B.I. obtained in its Trump-Russia investigation. When Lindsey Graham, Republican of South Carolina, asked Garland about the Horowitz report, Garland noted that the senator had asked him to read it ahead of the hearing—or at least the executive summary; the entire report is some four hundred pages long—and that he dutifully had. “So, what’s your general take?” Graham asked. Garland’s quite reasonable take was that there had “certainly been serious problems with respect to FISA applications.” Indeed, an F.B.I. lawyer has pleaded guilty to altering an e-mail used to obtain one of the warrants. Those warrants are granted by a secretive court that is meant to safeguard the rights of Americans caught up in counterintelligence operations, but too often does not—a failure highlighted by Edward Snowden, with his revelations about the excesses of mass surveillance, among others. “I think deeply that we have to be careful about how we use FISA,” Garland said. His obvious engagement in the question of FISA reform was a reminder that many Republicans are relative latecomers to the civil-liberties issues involved. It was also a reminder that Trump is not the measure of all things—even if, for Republicans, he remains one. And it was a reminder that Garland would very likely have been a pretty good Supreme Court Justice.
