Alabama Sen. Doug Jones and federal appeals court judge Merrick Garland are emerging as the leading contenders to be nominated as President-elect Joe Biden’s attorney general, three people familiar with the matter told The Associated Press.
A decision hasn’t been finalized and the dynamics could shift in the coming days as Biden builds out his Cabinet with an eye to ensuring diverse leadership in the top ranks of his administration
But Jones, who lost reelection last month, and Garland, whose Supreme Court nomination was snubbed by Republicans, appear increasingly well positioned ahead of other rivals. Democrats are particularly concerned about the prospect of Biden nominating former Deputy Attorney General Sally Yates fearing she could face a difficult confirmation in the Senate because of her role in issues related to the Russia investigation.
Biden’s thinking was described by people with knowledge of the presidential transition’s internal thinking who were not authorized to speak publicly. Andrew Bates, a representative for the transition, did not comment for this story.
The president-elect is facing pressure to ensure that Black and Latino leaders are prominently positioned in his administration. He selected retired Army Gen. Lloyd Austin this week to become the first Black secretary of defense.
Jones, who is white, has had a long-standing personal relationship with Biden dating back to Biden’s first presidential campaign in 1988. The former U.S. attorney prosecuted members of the Ku Klux Klan who were responsible for a 1963 church bombing in Birmingham, Alabama, and later served as the U.S. attorney there from 1997 until 2001.
Biden met with civil rights activists on Tuesday to discuss diversity in his Cabinet. The Rev. Al Sharpton, who attended the meeting, encouraged Biden to select a Black attorney general but gave him room to select someone of another race as long as they had a background in civil rights.
“I said the least we could have is someone that has a proven civil rights background that’s someone that’s going to handle this heightened racist bigoted atmosphere,” Sharpton told reporters.
It’s unclear whether Garland would fit that standard as easily. He is an experienced judge with a reputation for moderation who held senior positions at the Justice Department decades ago, including as a supervisor of the prosecution of the 1995 Oklahoma City bombing.
Garland was put forward by President Barack Obama for a seat on the Supreme Court in 2016 following the death of Justice Antonin Scalia, but Republicans refused to hold hearings in the final year of Obama’s term. The vacancy was later filled by Justice Neil Gorsuch during the Trump administration.
The incoming attorney general would inherit a Justice Department that has endured a tumultuous four years and would likely need to focus on not only civil rights issues and an overhaul of national policing policies after months of mass protests over the deaths of Black Americans at the hand of law enforcement, but also on concerns from Democrats about politicization of the department in the Trump administration.
Biden has said he will not be involved in Justice Department investigative decisions even as some Democrats have openly wished for probes into President Donald Trump and his associates after he leaves office.
Supporters of Yates have been arguing that her nearly 30-year Justice Department career in both Democratic and Republican administrations, and experience ranging from civil rights cases to national security matters, would make her uniquely qualified to lead the department as it looks to move on from the Trump era.
Still, Republican senators would be likely to focus a Yates confirmation hearing on her final year at the department, when the FBI closed out the Hillary Clinton email investigation and opened an investigation into whether the Trump campaign was coordinating with Russia, which later morphed into special counsel Robert Mueller’s investigation.
Yates has repeatedly discussed both, including before the Senate committee that has oversight of the confirmation process. She has made clear that she disagreed with the way the FBI conducted some of the most heavily scrutinized actions of both investigations, including the decision to hold a press conference about the Clinton case and then to alert Congress days before the election that it had been reopened.
Even so, Republicans would nonetheless press Yates on problems with the Russia probe that were exposed by a Justice Department inspector general investigation, including errors and omissions in applications to surveil a former Trump campaign aide, and about how she would handle a special counsel inquiry focused on the FBI’s actions in that case.
Yates has said that she would not have signed off on the surveillance had she known of the problems in the applications, but the appointment of John Durham as a special counsel to review the Russia probe suggests the inquiry is likely to endure into the Biden administration, creating a backward-looking focus for a new attorney general just as Yates would try to turn the page from the issue.
Jones would not comment Tuesday on the possibility of a nomination as attorney general.
“They have a process and we’ll let that process play,” he told reporters on Capitol Hill.
The Biden team has also been considering a number of other potential candidates for the post, including former Justice Department official Lisa Monaco and ex-Homeland Security Secretary Jeh Johnson.
Lemire reported from Wilmington, Del. Associated Press writers Lisa Mascaro in Washington and Kat Stafford in Detroit contributed to this report.