When President-elect Joe Biden nominated Merrick Garland for attorney general, he made clear his expectations for the head of the Department of Justice. “Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation,” Biden said.
Now Latino legal experts and scholars are weighing in with their expectations and hopes for the new attorney general.
They say Garland has an opportunity to help restore trust in the Justice Department and to prioritize criminal justice reform, immigration and civil and voting rights.
"It was a terrible DOJ under Jeff Sessions and William Barr," said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. "The DOJ was basically an instrument of the White House, and it pursued litigation positions that were contrary to what the mission of the department should be."
For Saenz, it will be critical that Garland’s Department of Justice focuses on voting rights because redistricting will be occurring across the country this year.
“The DOJ must be prepared to intervene in the violations of civil and voting rights that will occur,” Saenz said.
The grandson of Jewish immigrants from Russia, Garland was appointed to the U.S. Court of Appeals for the D.C. Circuit in 1997 and served as chief judge from 2013 to 2020. He was President Barack Obama’s pick for the Supreme Court in 2016. After the Senate’s Republican majority refused to hold hearings or a vote on Garland’s nomination, the vacancy was filled by President Donald Trump nominating Neil Gorsuch to the high court in 2017.
Former Attorney General Alberto Gonzales, who served under President George W. Bush, believes Garland is a solid candidate for the position.
“He’s worked at the department before, he’s obviously smart and I think he has good judgement for the job,” Gonzales said.
Gonzales explained that the attorney general’s job is unique because the official wears two hats: They are part of the president’s Cabinet, which is charged with helping achieve policy goals, and they are the nation’s chief investigator and prosecutor. In this role, the attorney general must be independent, Gonzales emphasized. “As long as the attorney general can discern what hat he should be wearing with regard to prosecutorial issues, then he is doing his job appropriately,” Gonzales said.
As attorney general, Garland could potentially open investigations into Trump and his inner circle on allegations of collusion with Russia, tax fraud and putting improper pressure on election officials, as well as into the Trump administration's family separations policy and the wrangling over the Census.
Areas to examine: criminal justice reform, immigration laws
Gonzales, dean of Belmont University’s College of Law, hopes that Garland’s Justice Department will prioritize criminal justice reform.
"I am a tough law enforcement person. I believe in accountability," Gonzales said. "But we have a criminal justice system that is very unfair. If you are a person of color or poor, you don’t get the same shake as someone who is white or has wealth."
While Garland is widely viewed as a centrist pick to lead the Department of Justice, in cases involving criminal law, he has usually sided with law enforcement. He also has a limited record on immigration. This matters to immigrant advocates, because the immigration court system is under the purview of the Department of Justice — and because the DOJ will likely face lawsuits over immigration measures enacted by the Biden administration.
Maria Blanco, executive director of the University of California Immigrant Legal Services Center, noted the immense potential power that an attorney general can have over immigration matters. She cited reports that former Attorney General Jeff Sessions aggressively pushed for the Trump administration's “zero tolerance” policy, which resulted in family separations.
“Garland is kind of an unknown when it comes to immigrant rights and refugee issues,” Blanco said.
A 2016 report by the American Civil Liberties Union noted, “The D.C. Circuit, on which Judge Garland sits, hears very few immigration cases...It is therefore difficult to draw any firm conclusions about Judge Garland’s views regarding immigration issues frequently before the Supreme Court.”
Under the Garland DOJ, Blanco hopes to see accountability for past immigration policy outcomes, such as the conditions in detention centers and allegations of forced hysterectomies of detainees.
Blanco expressed some disappointment that Biden did not choose a person of color for attorney general, “because much of what has happened in the last four years has been an attack on African Americans, Latinos and immigrants.”
Still, Blanco called Garland a good choice to lead the DOJ. “He is thoughtful and is not seen as having a political or personal agenda,” she said. She is likewise heartened by Biden naming Vanita Gupta as associate attorney general and Kristen Clarke as assistant attorney general for civil rights because of their strong civil rights backgrounds.
The national president of the Hispanic National Bar Association, Elia Diaz-Yaeger, said her group is curious to learn what Garland’s priorities will be as attorney general and how they will intersect with those of the Latino community.
“Whenever a new group [administration] comes in, we feel optimistic," she said. "We look forward to working with him over the next four years, and we are hopeful and think that he is an excellent choice for this position.” She mentioned humane enforcement of federal immigration laws and ensuring equal access to the ballot as areas of concern for her group.
Diaz-Yaeger said Garland's background as a prosecutor, as a judge and in the private sector would serve him well as attorney general.
“He’s shown throughout his career he has a high level of integrity and professionalism, and hopefully his bipartisan support will help him move through the confirmation process,” she said.
A Latino for U.S. Court of Appeals?
MALDEF's Saenz pointed out that in nominating Garland for attorney general, Biden has created a vacancy on U.S. Court of Appeals for the D.C. Circuit. This court is especially influential because it has jurisdiction over challenges to federal regulations and national security measures.
“This is the second most powerful court in the country,” Saenz said, “and it has never had a Latino or Latina judge. That needs to change.”
“By nominating Garland for attorney general, Biden has potentially created an opportunity for a qualified Latino,” Saenz added. “Having created the vacancy, the new administration has the responsibility to fill it — and there are many Latinos who could sit on that court.”