Five years ago, Sen. Mike Lee joined Senate Republicans in refusing to hold a hearing on Merrick Garland to fill a vacancy in the U.S. Supreme Court.
Four years ago, Lee suggested Garland replace the fired James Comey as director of the FBI.
On Monday, Lee questioned Garland — now President Joe Biden’s nominee for attorney general — at a Senate Judiciary Committee hearing about what the senator described as “radical” positions of other Department of Justice nominees, gun rights and the Foreign Intelligence Surveillance Act.
Lee has not indicated whether he would vote to confirm Garland, who has served as an appeals court judge for nearly 25 years, as U.S. attorney general.
In 2016, he described Garland as a “progressive, fairly liberal” judge. When touting him as FBI director in 2017, Lee said Garland would be an “exciting” pick and called him a “prosecutor’s prosecutor.” Garland prosecuted the Unabomber and Oklahoma City bomber Timothy McVeigh.
“He’s someone who’s got likely allies in both parties,” Lee said at the time.
Lee pressed Garland on statements attributed to Kristen Clarke, Biden’s nominee to serve as assistant attorney general for civil rights, and Vanita Gupta, the president pick for associate attorney general.
“Would an individual’s past statements as an adult declaring that one racial group is superior to another, would statements like that be relevant to an evaluation of whether such a person should be put in charge of running the Department of Justice’s civil rights division?” Lee asked the attorney general nominee.
Garland said he’s read the allegations about Clarke, and as he’s gotten to know her, believes she is a person of integrity. He said her views about civil rights are in line with his own.
“I have every reason to want her. She is an experienced former line prosecutor of hate crimes and we need somebody like that,” he said.
Lee cut Garland off, saying “what about anti-Semitic comments. Would those be relevant?”
“You know my views on anti-Semitism. No one needs to question those,” said Garland, who earlier detailed his family’s experiences with anti-Semitism. “I’m a pretty good judge of what an anti-Semite is and I do not believe that she is an anti-Semite and I do not believe that she is discriminatory in any sense.”
Lee asked Garland: “Do you believe Republicans in the United States, and by Republicans I mean as a whole, are determined to ‘leave our communities to the mercy of people and institutions driven by hate, bigotry and fear of any threat to the status quo.’”
Garland said he would never make generalizations about members of political parties.
Lee concluded asking what assurance Garland could give, if confirmed, to Americans who are Republican, pro-life, religious and members of certain minority groups that the DOJ will protect them if leaders in the agency have condoned “radical” positions.
Garland said he doesn’t believe Gupta or Clarke condone those positions.
“I have complete faith in them,” he said. “The final decision is mine. The buck stops with me ... I will assure the people that you are talking about I am a strong believer in religious liberty and there will not be any discrimination under my watch.”
Lee said after the hearing that he was “disappointed” that Garland declined to condemn “dangerous, radical” positions previously taken by Gupta and Clarke.
I was disappointed that Judge Garland declined to condemn dangerous, radical positions previously taken by fellow DOJ nominees, Vanita Gupta and Kristen Clarke. pic.twitter.com/ME3NVfFbt9— Mike Lee (@SenMikeLee) February 22, 2021
As attorney general, Garland would have a significant impact on policy in the Biden administration, Lee said.
Biden promised during his campaign to end the “gun violence epidemic” by banning the manufacture and sale of assault weapons and high-capacity magazines, requiring universal background checks on all gun sales and holding gun manufacturers liable for people who misuse their weapons.
Lee asked Garland about each of those issues.
“As I’m sure you know, the president is a strong supporter of gun control,” Garland said. “The role of the Justice Department is to advance the policy program of the administration as long as it is consistent with the law.”
The president, he said, would be allowed to pursue bans on specific types of guns where there is room under the law.
On universal background checks, Garland said it’s important to be careful that people who are entitled to have guns get the background check that allows them to have firearms and those who are not entitled because they pose a threat, are felons or legally barred that there is an opportunity to determine that they not be given a gun.
Garland didn’t express a position about whether policies that would hold gun-makers liable for damage or crimes committed by people using firearms the company produces.
“I believe the president may have a position on this question. I have not thought myself deeply about this. I don’t think it raises a Second Amendment issue itself,” he said.
Lee also asked Garland about the Foreign Intelligence Surveillance Act Court, commonly called FISA court. The senator has led the charge to curb U.S. surveillance powers and reform the court, arguing the law is intended to thwart the efforts of foreign agents, not to go after American citizens.
Garland said FISA is an “extremely important” tool for the Justice Department and the intelligence community to protect the country from foreign terrorists.
“On the other hand, it is extremely important that everything we do with respect to FISA, and I have felt this way my entire professional life also, that we do so in accordance with the law and with respect for the constitutional rights of citizens,” he said.
Lee asked if the government should be able to collect U.S. citizens’ web browsing or internet search histories without a search warrant.
“I know this is a big issue,” Garland said, adding he believes in judicial review but doesn’t know the practicalities of seeking a warrant in those circumstances. “I’m eager to engage with you and other members of the committee who are concerned about this so that I can understand this problem more fully.”