'Golden boy' will restore AG to its original role

  • Susan Estrich

    Susan Estrich

By Susan Estrich
Posted1/12/2021 1:00 AM

Amid Wednesday's riots, President-elect Joe Biden's selection of Judge Merrick Garland as attorney general was not the front-page story it otherwise would have been.

In watching the horror of terrorists taking over the Capitol, the only consolation that got me through the day was the knowledge that my old friend will soon be running the Justice Department.


If you look at his resume, or his Wikipedia page, the phrase "golden boy" jumps out.

He was the valedictorian of his high school class, the valedictorian of his college class, a Supreme Court clerk, a law firm partner, a prosecutor and, until recently, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

I looked at his Wikipedia page and had to laugh. There I was: We both ran for president of the Harvard Law Review, and I won. I might be the only person who ever beat him in any contest.

Merrick is a winner. He was also the valedictorian of his college class at Harvard. We worked side by side, quite intensely, for two years in law school. When we graduated, I worked for two months at Covington, while he was down the street at Arnold & Porter, and everyone else we knew was taking the bar. On Fridays, A&P had a little drinks party. I was a regular as Merrick's guest. He clerked for former Justice William Brennan while I was clerking for Justice John Paul Stevens. He went to work as the special assistant to the attorney general; I went to work as a special assistant to Steve Breyer, then the Senate Judiciary Committee's chief counsel.

Our paths diverged when I joined the Harvard faculty. But I always kept my eye on Merrick. He did a stint as deputy assistant attorney general to the head of the Justice Department Criminal Division, working for our good friend Jamie Gorelick, followed by a stint as a prosecutor of the Oklahoma City bombers. He was one of the smartest guys in our class, and one of the most popular. There were some very arrogant folks in our circle. Merrick was not one of them.

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Merrick soared because he is that smart, that dedicated and that principled.

I certainly don't agree with all his decisions, nor would I expect to. Before clerking on the Supreme Court, Merrick clerked for one of the most respected judges in America, Henry Friendly. Judge Friendly was revered not for his ideology, like my Judge, J. Skelly Wright, but for his carefully thought-out and brilliantly written opinions. Henry Friendly was not a liberal. Like Garland, he was a moderate.

The selection of Garland tells you something important about our president-elect. Sixty years ago, Jack Kennedy uttered two words in announcing his AG choice: "It's Bobby." JFK was criticized for choosing his own brother for that post, but in many ways, it made sense. The attorney general is the only Cabinet official with unilateral authority to take on the president. Picking someone you know well, someone who will be loyal to you through thick and thin, is what many presidents have done.

Donald Trump insisted that the attorney general act as his lawyer and protect him from embarrassing investigations while simultaneously digging for dirt about his opponent's family. Bill Barr replaced Jeff Sessions as AG because Trump was furious at Sessions for having recused himself from the Russia investigation. Barr was a respected conservative lawyer whom Trump turned into a puppet. But even after Barr crossed the line multiple times for Trump, he was not willing to help him subvert democracy and violate the Constitution.

The president-elect was the ranking Democrat on the Senate Judiciary Committee. He did not pick Merrick Garland because he thought Garland would take orders from political hacks, because he won't. Until the day of this nomination, the president-elect was lobbied hard to pick a Black person or a woman for the job. There were many candidates who would have added to the diversity of the Cabinet. And there were many who have been close to Joe Biden for years.

Instead, he picked a man who will restore the Justice Department to its real role, not as the president's lawyer but as ours.

© 2021, Creators

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