'White supremacists have never conceded defeat': Legal expert explains what Biden's AG pick means

Joe Biden has formally nominated Merrick Garland for attorney general. Garland has served on the D.C. Circuit Court of Appeals for over two decades and previously worked at the Justice Department, where he prosecuted the Oklahoma City bombing case. President Obama nominated Garland in 2016 to serve on the Supreme Court, but the nomination stalled after Republican senators refused to put it up for a vote. Elie Mystal, justice correspondent for The Nation, says Garland is an "underwhelming" pick, given his judicial record. "People need to remember that Garland was picked for the Supreme Court because he was a compromise candidate," says Mystal. "This is a centrist jurist who has a history — a troubling history, to me — of being deferential to police and being unwilling to hold police accountable for acts of brutality and misconduct."

Transcript

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AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report.

President-elect Joe Biden has formally nominated Judge Merrick Garland for attorney general. Garland is a centrist judge who was President Obama's pick to serve on the Supreme Court after the death of Antonin Scalia in 2016, but his nomination stalled after Republican senators, led by Mitch McConnell, refused to put it up for a vote. Garland served on the D.C. Circuit Court of Appeals for over two decades, previously worked at the Justice Department, where he prosecuted the Oklahoma City bombing case. On Thursday, Merrick Garland cited the insurrection at the Capitol as he talked about the rule of law.

JUDGE MERRICK GARLAND: As everyone who watched yesterday's events in Washington now understands, if they did not understand before, the rule of law is not just some lawyer's turn of phrase. It is the very foundation of our democracy. The essence of the rule of law is that like cases are treated alike, that there not be one rule for Democrats and another for Republicans; one rule for friends, another for foes; one rule for the powerful, another for the powerless; one rule for the rich and another for the poor; or different rules depending upon one's race or ethnicity.

AMY GOODMAN: Biden's other picks for top posts at the Justice Department include Vanita Gupta to be associate attorney general, currently head of the Leadership Conference on Civil and Human Rights.

VANITA GUPTA: Now is the time to ensure that our economic system works for everyone, that we can protect the health and safety of all of the American people, and that we will harness all of the Justice Department's levers for civil rights, justice and police reform and climate justice and so much more.

AMY GOODMAN: And Joe Biden has nominated Kristen Clarke, the head of the Lawyers' Committee for Civil Rights Under Law, to be assistant attorney general for civil rights.

KRISTEN CLARKE: I stand here today deeply inspired by the example of the late Thurgood Marshall, Constance Baker Motley and other public servants who dedicated their lives to advancing the cause of justice. We are at a crossroads. If I am fortunate enough to be confirmed, we will turn the page on hate and close the door on discrimination by enforcing our federal civil rights laws.

AMY GOODMAN: To talk more about President-elect Joe Biden's picks to run the Justice Department, we're joined by Elie Mystal, The Nation's justice correspondent, author of the magazine's monthly column "Objection!"

I mean, what an unusual day, Elie. You have this aftermath of the insurrection on Wednesday, and as the death toll grew to five, you have Joe Biden coming out and announcing who would be the attorney general and the other picks for the Justice Department. Again, you were tweeting up a storm about both. Can you respond to his choices and also what happened in the nation's Capitol?

ELIE MYSTAL: [inaudible] pick for attorney general was going to be his most consequential Cabinet pick, before the president of the United States appears to have launched a failed coup against his own government. Right? Merrick Garland's pick was huge before the events of this week.

I am a little bit underwhelmed by the Garland pick. People need to remember that Garland was picked for the Supreme Court because he was a compromise candidate. He was picked to entice Republican votes to confirm him. Now, people have forgotten why he was a centrist and why he was a compromise candidate, because the Republicans martyred him, you know, over the Scalia replacement, and so he's gotten this kind of like cult status. But this is a centrist jurist who has a history — a troubling history, to me — of being deferential to police and being unwilling to hold police accountable for acts of brutality and misconduct.

Now, people change, right? I'm basing my information on his actual written opinions from his long career. But that was before Trump, right? That was before the events of this week even. So, Merrick Garland is going to have an opportunity to prove me wrong and to prove that he's learned and evolved, because, to link it up with what we've seen this week, by the time Merrick Garland takes control of the Justice Department, many of the domestic terrorists that we saw this week will have not been brought to justice. Right? Very few of them will have been arrested. Very few of them will have been charged. Merrick Garland will have an opportunity, will have a target-rich environment, to show that he is willing to put the rule of law and to take these people on head on and seriously, right? He will not have charged — we will not have charged Don Trump Jr. for incitement to a riot, as he did in that speech, when he stood there for two minutes and yelled "Fight for Trump! Fight for Trump! Fight for Trump!" right before they stormed the Capitol. Don Trump Jr. will not have been charged by the time Merrick Garland takes control, all right? Rudy Giuliani, who instructed these people to go out and have a "trial by combat," will not have been charged by the time Merrick Garland takes control. So, if he wants to prove that he is ready to apply the rule of law equally, he will have multiple opportunities to do so as of January 20th.

AMY GOODMAN: So, talk about the other members of the team and how much power they have. We just interviewed the now-head, if she is approved, the head of th Civil Rights Division, who Joe Biden had nominated, not to mention — that's Kristen Clarke — not to mention Vanita Gupta. We'll post both of those interviews recently. Their significance? And will these even departments be revived? Talk about what's happened to them.

ELIE MYSTAL: It's a great team, I think, writ large. Kristen Clarke is one of the best. I think she will be great at the Civil Rights Division. Vanita Gupta — I mean, look, all else being equal, Vanita Gupta is on my personal shortlist for the Supreme Court, like I think she is that kind of serious and important person. So, I couldn't — I am very happy with the team.

When you talk about the kind of power they have, that's going to have a lot to do with Garland himself. The fact that they were all announced together, which doesn't always happen, suggests that that department will work hand in hand — hand in glove, perhaps, is a better analogy for that. So, I have hope that they will have real power, real authority to — and I think you put it exactly right — restore divisions of the Justice Department that have atrophied or, in some cases, willingly been dismantled by Bill Barr and Jeff Sessions.

Take the Civil Rights Division, for instance. One of the main ways the federal government has for imposing standards on local police is through the use of something called consent decrees. The Justice Department investigates you. To avoid federal charges, your jurisdiction, your police department, enters in a consent decree with the Justice Department to meet certain standards in terms of, you know, good policing ideals. Jeff Sessions famously ended the use of consent decrees within his first couple of weeks in office. I would assume that Kristen Clarke will restore the use of consent decrees within her first hundred hours in office. Right?

So, the atrophying and, I say, the willful dismantling of some of the structures of the Justice Department, I do have hope will be restored under this team. But again, the issue here is not — restoration is great. It's important to bring the Justice Department to wash clean the stains of Bill Barr and Jeff Sessions from the Justice Department. That's all well and good. But this moment demands more than mere restoration. This moment demands a Justice Department who is willing to go after the people who threaten our democracy and who openly threaten the safety of Black people in this country. And Merrick Garland will have an opportunity to prove that he is willing to do that.

AMY GOODMAN: And then you have the speculation that if in fact he is approved by the Senate, now a Democratic Senate, you'll have his open seat on the federal bench, the possibility that Judge Ketanji Brown Jackson will fill that seat and then possibly be nominated to the Supreme Court, if there is an opening.

ELIE MYSTAL: Yeah, so, here's the thing about the D.C. Circuit. And I don't want to get too far into the weeds, but the D.C. Circuit, which is where Garland currently sits, is basically like the theater circuit for the Supreme Court. A lot of Supreme Court justices kind of got their start on the D.C. Circuit, currently on the Supreme Court. John Roberts, Clarence Thomas and Brett Kavanaugh all came from the D.C. Circuit. Ruth Bader Ginsburg came from the D.C. Circuit. It's a theater, you know? It's the Alabama to the NFL, right? The D.C. Circuit is not nothing.

AMY GOODMAN: A theater court.

ELIE MYSTAL: Yeah. So, yes, putting Judge Jackson on the D.C. Circuit is not only great for Judge Jackson — she's a great judge — and great for the D.C. Circuit; it's a suggestion that you are being groomed to fill a seat on the Supreme Court, should an opening come up. So, that's great. That's important.

I'll point out that Garland — that people making this big, like, "Oh, and so, see, there's three-dimensional chess for" — Judge Garland was old enough that he could have taken senior status, and thus opened up the seat on the D.C. Circuit anyway. So, this argument that, like, the really good thing about making Garland AG is that he's opened up this, that doesn't really hold up. All right? Like, it's great that Biden will have the opportunity to put another judge on the D.C. Circuit. That's awesome. That didn't have to be this way. Biden wanted it to be this way, didn't have to be this way.

AMY GOODMAN: Elie, just before we go — we just have 30 seconds — from The Washington Post, "Time will tell whether the takeover of Capitol was a riot, a last gasp of a renegade president or an early skirmish in a civil war." And your new piece for The Nation is headlined "The Confederacy Finally Stormed the Capitol." The significance of this week?

ELIE MYSTAL: What we saw this week was — Frederick Douglass said, "Power never concedes anything without a demand." And what we saw this week was power not conceding. All right? White supremacists have never conceded defeat, not once, not ever in the history of this country. And we have to always be ready to fight them, because when we are not ready, when we are not prepared, this is what happens.

AMY GOODMAN: Elie Mystal, I want to thank you for being with us, The Nation's justice correspondent, author of The Nation's monthly column "Objection!" We'll link to your latest piece.

This is Democracy Now! When we come back, speaking of storming, a data scientist from Florida, Rebekah Jones, her home is raided by authorities in Florida. We'll find out why it was guns were put to the family of this data scientist and she had to move, as she talked about information about Florida's COVID-19 outbreak, now reaching a peak. Stay with us.