First Mike Lee, now Mitch McConnell: Trump should choose Merrick Garland as FBI director

Headshot image of Dan Calabrese
Published by: Dan Calabrese on Tuesday May 16th, 2017


Your reactions ranged from "that would be brilliant" to "no . . . never" when we first raised this last week. Or I should say, when conservative Sen. Mike Lee raised it last week. Some of you saw it as the same brand of brilliant triangulation I did, and weren't too worried about Garland being a Democrat because FBI director is not really a partisan job. Others thought the last thing we needed was to put anyone from the other side in a position to lead this Russia investigation or anything else.

So. Here we are almost a week later. Now it's not just one conservative back-bencher saying it. Now it's the Senate Majority Leader doing so in the form of a formal recommendation to the president:

U.S. Senate Majority Leader Mitch McConnell said on Tuesday he has told President Donald Trump that he should pick federal appeals judge Merrick Garland to succeed ousted director James Comey at the head of the FBI.

Speaking in an interview on Bloomberg Television, McConnell said he has spoken with Trump and that Garland, a former federal prosecutor, would be "an apolitical professional" to head the Federal Bureau of Investigation.

Garland was Democratic former President Barack Obama's nominee to fill a Supreme Court vacancy, but Senate Republicans led by McConnell refused to act on the nomination for nearly a year. The delaying tactic allowed Trump to nominate conservative Neil Gorsuch to fill the seat after he took office in January.

Garland, 64, has been praised by both Democrats and Republicans in his 20 years on the U.S. Court of Appeals for the District of Columbia Circuit, often called the second highest court in the country. His appointment there is a lifetime one, and if he took on a 10-year term at the FBI it would open up a top judicial seat for the Republican president to fill.

A Garland nomination would be nearly impossible for Democrats to oppose after they spent all of last year singing the man's praises. Last week's piece covers all the arguments for it, and I guess the argument against is mainly "he's a Democrat," which is not an argument without considerable merit.

A more interesting question is whether Garland would really want the job. As a federal judge he has a lifetime appointment on one of the most prestigious appeals courts on the federal circuit. And if you're Garland, you have to figure another shot at the Supreme Court isn't entirely out of the question. It won't come from Trump, of course, but in the event Trump becomes a one-term president, Garland would only be 68 when a new Democrat president takes office. You might think someone a little younger would be a more popular choice, but you never know, and President Booker might see it as a chance to right what Democrats still think was a historic wrong.

GDP growth for Obama's final year? A measly 1.6 percent

Then again, Garland could accept a 10-year term as FBI director and still get nominated to the Supreme Court. And while a lifetime judicial appointment is about as close to absolute job security as you can get (it is possible to impeach federal judges but it's extremely difficult and there's no reason to think Garland would provide a justification for it), a 10-year term as FBI director that gets you to age 74 isn't such bad security either. Of course, as James Comey can tell you, FBI directors can be fired. And as long as Trump is president, Garland would have to realize nothing is guaranteed.

So why consider taking it? I have no idea if he would, but it wouldn't totally shock me if he did. Lots of people would be intrigued by the idea of taking on a challenge that's both difficult and important. And if you're an accomplished, self-confident person who has a good repuation and has made friends, job security means only so much to you. Does anyone seriously think Merrick Garland would become destitute for inability to find a job if he got fired from the FBI, or had to retire at 74 without his former judicial salary to fall back on?

I think the man would be fine one way or another.

Whether he would want to work for Trump is another question, as is the very real matter of a Republican Trump appointee replacing him on the Court of Appeals. If Garland's top priority is maintaining judicial seats for Team Blue, I suppose he might decline. But if he's interesting in a real career challenge, I don't know. This idea sure keeps coming up a lot.

Dan's new novel, BACKSTOP, is a story of spiritual warfare and baseball. Download it from Amazon here!