We’re here today to vote on the nomination of Judge Garland to be
Attorney General of the United States. I intend to support his nomination, but
I want to state my concerns about the direction of the Department of Justice in
the hope that he will work with us to do what he said he wants to do: keep the
Justice Department non-partisan and apolitical.
Judge Garland, as I said in his hearing, is an honorable man. He
says he wants to follow the law, nothing more and nothing less, and I believe
that is what he wants to do. His career of faithful public service, I think,
means I owe him a chance to do that. But he has his work cut out for him.
During the campaign, Joe Biden said his administration would be the most
progressive in history. I’m afraid he might be right. It’ll be up to Judge
Garland to stand up to efforts to turn the Justice Department into an arm of
the progressive wing of the Democrat Party, as happened under Obama.
Let me get into some specifics.
First, Durham. We covered the Durham investigation a lot at Judge
Garland’s hearing and in written questions. While Judge Garland has
consistently said that he has no preconceived notions on Durham he has,
unfortunately, refused to give the same commitments on Durham that Barr gave on
Mueller. In written questions, too, he has refused to explain what standard,
exactly, he would apply to evaluate Durham and failed to give the kinds of easy
commitments Barr gave. What he has told us, though, is that in spite of these
failures to commit, he expects he will allow Durham to proceed.
I take Judge Garland at his word that he will, in fact, allow
Durham to proceed. I will also put him on notice now. Because of his repeated
failure to commit to protect Durham, any actions taken to end, cover up, or
otherwise undermine the Durham investigation should be interpreted as
premeditated and political. If Durham is sidelined, that will be the only
explanation for Judge Garland’s consistent refusal to answer like Barr did on
Mueller. As I said, I believe Judge Garland is an honorable man, so I expect
that will not happen. But his credibility is on the line.
Second, religious liberty. Judge Garland spoke movingly of his
family seeking refuge in the United States while fleeing antisemitism. Like
Judge Starr, I trust that he understands the importance of religious liberty.
By voting for Judge Garland I am expressing confidence in his willingness to
take those rights seriously. I asked him many written questions about religious
liberty and was satisfied that a Justice Department run by Attorney General
Garland will protect religious liberty as the broad “first freedom” envisioned
by our Founders, and not marginalize it as a backwards lifestyle preference as
envisioned by progressive radicals.
The right to bear arms. I’ll be frank, Judge Garland’s answers on
the right to bear arms have not been encouraging. During his hearing he said
he’d faithfully enact President Biden’s gun-grabbing agenda. I hope he will
stand up for the independence of the Justice Department and follow the law when
President Biden instructs him to violate the Second Amendment. If he doesn’t, I
expect the courts will have something to say about it.
Litigation positions. If Judge Garland really wants to show us
that he’s the next Ed Levi and not the next Eric Holder, he should pay close
attention to positions the Justice Department takes in litigation. Just because
the Trump Justice Department took a position doesn’t mean it was wrong. If
every four to eight years the Justice Department comes up with a new list of
statutes it won’t defend or rights it disfavors, what’s the point in passing laws?
I hope that Judge Garland—thinking back on his long judicial experience—will
preserve the institutional credibility of the Justice Department.
It’s a similar issue with “prosecutorial discretion.” Just because
a prosecutor has discretion in how to charge and try a case doesn’t mean the
Attorney General has “discretion” in how to charge and try all cases in ways
that change the law. We saw this with DACA under Obama. I’m concerned we’ll see
this on the death penalty and illegal entry under Biden. The role of the
President is to take care that the laws be followed. This applies to the
Attorney General as well. The Attorney General doesn’t get to use principles of
discretion to change the law however much he or she might want to.
“Slush funds” are related to these concerns. When the Justice
Department enters into a settlement with a bad actor, the money should go to
the victims and the U.S. treasury. Giving that money to
third-parties—especially those Congress has defunded—is a direct assault on the
appropriations process. I, frankly, can’t see any good reason why the Justice
Department would rescind the existing regulations on this subject. Any effort
to change these settlements will be pure and open political favoritism.
I could go on: there’s “sue and settle,” “government by blog post”
with guidance documents, abusive consent decrees, defending IRS targeting,
Operation Chokepoint. Democrats have collective amnesia on the scandal-a-day at
the Obama Justice Department, during which it was almost always punishing
Obama’s political enemies.
What do all these practices have in common? Besides being partisan
and political, they’re an effort to do an end-run around the Congress. If Judge
Garland is serious about having a non-partisan Justice Department, and I think
he is, then he will nip these bad practices in the bud. He will enforce the
law. He will not manipulate the powers of the executive to make the law more satisfying
to progressive activists.
Judge Garland, if he’s serious about what he’s told us, has a big
job ahead of him. He will be under tremendous pressure from within the Biden
administration and from Congressional Democrats to turn the Justice Department
into Marc Elias and the ACLU with guns. It’ll be up to him to keep the Justice
Department from turning into the Social Justice Department. I take him at his
word that this is not what he wants and that his occasional evasions were in
good faith. I plan to vote for him. I hope that my trust is not misplaced.