Not likely, but the suggestion is interesting (and troubling) for a number of reasons.
Following the firing of FBI director James Comey, many names have been floated as a possible replacement. One of the people mentioned as a candidate is Judge Merrick Garland. Senator Mike Lee suggested Garland soon after the firing, and Mitch McConnell has further promoted the idea. This is intriguing from several angles. It is almost certainly an example of Republicans trolling Democrats—a reminder of Garland’s failed confirmation process. Many others have suggested that this is an attempt to open a seat on the DC Circuit, arguing that Garland would have to give up his tenure to take the new position.
However, this second point is not as straight forward as it may seem. Garrett Epps lays this out nicely in a recent article for the Atlantic. While most think Garland would have to give up his seat, there is no explicit requirement for him to do so. Article 1, Section 6 of the US Constitution prohibits members of Congress from serving in the Executive or Judicial branches while in office. This was done to prevent vote buying and other forms of corruption.
There is, though, no restriction from someone serving in the Executive and Judicial branches concurrently. John Marshall, for example, served as Chief Justice and Secretary of State for several months in 1801. Earl Warren served as head of the Warren Commission investigating the JFK assassination without giving up his seat as Chief Justice. As the chief judge on his circuit, Garland could also grant himself a leave of absence. Justice Robert Jackson took a leave of absence from the Supreme Court from 1945 to 1946 to serve as a prosecutor in the Nuremburg Trials. In none of these examples did a judge give up their seat. And Republicans can’t fill a seat that isn’t vacant.
This would lead to a rather poetic situation where Merrick Garland would be appointed by a Senate that wouldn’t confirm him to investigate a President who nominated someone else in his place. Republicans wouldn’t even get the consolation prize of filling a vacant seat. As Epps suggests, Republicans should be careful what they wish for. Having that wish granted may be more than they could handle.
Of course, none of this really matters. Garland is reportedly not interested in the job, and even if he were, there is virtually no chance Republicans would allow him to take the position without giving up his seat.
Still, the suggestion of Judge Merrick Garland as FBI Director is troubling. Republicans seem more interested in rubbing a loss in the Democrats’ faces than safeguarding the integrity of American democracy. Rather than trolling Democrats, Republicans should focus on the serious implications of Comey’s firing and the Russian investigation.
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