Jan 12, 2021

Biden picks Merrick Garland.

Biden picks Merrick Garland.

Plus, what can Democrats do with 50 votes?

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 10 minutes.

Joe Biden’s pick for attorney general. Plus, what can Democrats do with 50 votes?

Merrick Garland (left) with now-Senate Majority Leader Chuck Schumer (right) in 2016. Photo: Senate Democrats

Reader feedback.

Rob from Reno, Nevada, said that “it is disturbing that a private company suppresses the private account of Donald Trump, but it is terrifying they are also moderating the content of @POTUS, our fairly elected President of the United States. Yet another private company has completely suppressed the voices of millions of private citizens who might agree with some of what the President, the leader of the Republican Party says. That is fascism. How easy will it be for them to disappear Tangle when your assessment of ‘what the right is saying’ is too generous, and your assessment of ‘what the left is saying’ is deemed unfair, and when your ‘take' is out of line with the beliefs of those hosting your site and distributing your emails?”

Another reader, from Pittsburgh, Pennsylvania, said: “It's totally reasonable to debate whether these bannings should happen, but to frame them as an ‘attack on conservatism’ is further divisive, dangerous, and frankly offensive to conservatism. No one is under fire for criticizing abortion, supporting states' rights or gun rights, or extolling family values, religion, or conservative fiscal policy. It's surprising to me how traditionally tempered conservative voices like the Wall Street Journal embrace this framing, since it essentially equates ‘conservatism’ and ‘paranoid conspiracy theory and violent sedition.’ God help us if that's where we are now.”

Quick hits.

  1. Capitol Police briefed House Democrats on three additional domestic terrorist plots that are being monitored and could impact the January 20th inauguration of Joe Biden.
  2. President-elect Joe Biden received his second dose of the Pfizer coronavirus vaccine publicly in Newark, Delaware, yesterday.
  3. Two Democratic congresswomen have tested positive for COVID-19 after sheltering in place with colleagues. Both members pointed the finger at Republicans, who were seen on video refusing to put on masks during the riots in the Capitol.
  4. The Trump administration designated Cuba as a state sponsor of terrorism. The Obama administration lifted that designation in 2015 in an effort to improve relations with the country.
  5. Unlawfully appointed Acting Secretary of Homeland Security Chad Wolf has stepped down from his post, according to Politico.
  6. Two Capitol Hill police officers were suspended this week: One took a now-infamous selfie with one of the rioters and the other wore a Make America Great Again hat while directing the mob through the Capitol.

What D.C. is talking about.

Merrick Garland. Last week, amidst the turmoil of the Capitol building riots, Joe Biden quietly made one of his most significant Cabinet picks: Attorney General. The President-elect chose Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit and graduate of Harvard Law School.

Garland is best known as former President Barack Obama’s nominee to the Supreme Court, whose nomination Senate Majority Leader Mitch McConnell refused to take up for a vote — allowing it to stagnate for 293 days. The delay, which began in early 2016, lasted until Donald Trump won the election, and the seat Garland was nominated for eventually went to Neil Gorsuch.

Garland will take over William Barr’s post as attorney general at one of the most contentious and complex times in American history. He faces the prospect of progressives calling for a former president (Donald Trump) to be investigated and prosecuted and conservatives calling for an investigation into the sitting president’s son (Hunter Biden), with special counsel John Durham investigating the origins of the Trump-Russia investigation, and a rising tide of domestic extremism that has led to events like those we witnessed in Washington D.C. last weekend.

At 68, Garland has nearly pristine — although somewhat unusual — qualifications for the role, having served as chief judge on the second most powerful court in the country for eight years.


Merrick Garland is one of the few Cabinet picks who’s received widespread praise from prominent pundits and institutions on the right and left. While there is some dissent here and there, very few people are sounding alarms about any serious threat Garland would pose as attorney general.

What the left is saying.

The left is supportive of the pick, though there is some consternation on the progressive left about what Garland means for tackling police reforms.

The Washington Post editorial board argued that Merrick Garland is the perfect person to fix the Justice Department.

“Even as Republican senators denied him a seat on the nation’s highest court, they insisted that their partisan power play had nothing to do with Judge Garland himself,” the board said. “That is because he is a brilliant jurist of near-universal acclaim. His nomination to lead the Justice Department sends an emphatic message that Mr. Biden does not want what President Trump desired in an attorney general: a lackey who will serve as the president’s personal attorney. Instead, Mr. Biden chose an apolitical judge who will serve with the independence and credibility befitting the nation’s top lawyer.

“While one can take issue with a choice or two, Mr. Biden’s Cabinet picks show what a welcome change his administration will be,” the board added. “With a few exceptions, Mr. Trump elevated a collection of ideologues, sycophants and mediocrities to run the federal government. Mr. Biden, by contrast, is surrounding himself with a historically diverse group of capable, experienced individuals dedicated to public service.”

Scott Lemieux, a political science professor at the University of Washington, argued that Garland isn’t the best or the worst idea as attorney general.

“As many liberal skeptics noted when he was a [sic] Obama's Supreme Court nominee, Garland is a former prosecutor whose record on civil liberties is particularly concerning; his embrace of ‘tough on crime’ policies may have represented the elite Beltway consensus in the '80s and '90s, but it wasn't intellectually defensible then, and it certainly isn't in retrospect. The American Civil Liberties Union's comprehensive evaluation of his circuit court tenure found Garland to be a careful craftsman with a fairly liberal record on issues like civil rights but a conservative record on civil liberties. According to the report, Garland ‘very rarely ruled in favor of defendants in Fourth Amendment cases,’ and his ‘notable sentencing decisions similarly demonstrate a pro-prosecution perspective…’

“Ultimately, Garland is the Joe Biden of nominees, really: bland and competent without being particularly interesting or progressive, all of which is infinitely preferable to Donald Trump and his minions but behind the curve of the Democratic coalition ideologically.”

In an op-ed for the Brennan Center, Andrew Cohen argued that Garland is perfect for this moment to take on the right-wing extremism in America.

“Merrick Garland made his bones at the Justice Department 25 years ago when he coordinated the federal government’s prosecution against Timothy McVeigh and Terry Nichols for the Oklahoma City bombing, which killed 168 people,” Cohen wrote. “He did a masterful job. The trials of the two domestic terrorists, which took place in Denver, were orderly, dignified, and in the best traditions of law and order... . Garland will make an excellent attorney general for many obvious reasons and a few discrete ones. Most importantly, though, in the wake of the Trump riot yesterday at the Capitol, Garland is the perfect candidate to take on the current right-wing extremist threat roiled to deadly action by the seditionist Donald Trump on his way out of office.

“There must be a reckoning,” he added. “And Garland is perfect for that role. His experience as a prosecutor and judge — and his lack of experience as an elected official — make him well-suited to handle the political blowback he’ll receive when the federal indictments start flying toward former Trump administration officials… But the work of holding Trump officials to account may now have to take a back seat to the daunting work of consequences for the hundreds of rioters who desecrated the Capitol Wednesday at the urging of Trump and his Republican lackeys. The insurrectionists all violated federal law — trespassing, conspiracy, etc. — and they all should be prosecuted even if it takes four years of a Biden administration to do so.”

What right is saying.

The right is generally happy with the pick, noting that of all the rumored choices Garland is by far the best option.

The New York Post editorial board called it a “sound choice that will also give Democrats some symbolic satisfaction after the GOP-run Senate refused to consider his nomination to replace Supreme Court Justice Antonin Scalia in 2016.”

“More important — and in a break with recent Democratic presidencies — he’s well-suited to keep partisan politics out of Justice Department decision-making… In 25 years on the DC Circuit, Garland has proven himself a gifted, scrupulous judge. As a proven centrist, he already has the backing of Republicans like Sen. Lindsey Graham (S.C.), Mitch McConnell (Ky.), Mike Lee (Utah) and Susan Collins (Maine), who all cite his integrity and independence and say they’ll be happy to see him run the FBI.”

In Fox News, Hans A. von Spakovsky said the biggest question is if Garland can truly stay independent.

“Among the most sensitive issues the new attorney general will face will be whether to prosecute Biden’s son Hunter for possible improper conduct involving his lucrative foreign business dealings, primarily with China,” he wrote. “Hunter Biden is now under investigation by the Justice Department to determine if he violated any tax and money laundering laws. Hunter Biden said in a statement last month that ‘I handled my affairs legally and appropriately including with the benefit of professional tax advisors…’

“The attorney general must also demonstrate a willingness to go after prosecutors and others inside the Justice Department when they abuse their authority. Former Attorney General Barr did just that when he appointed U.S. Attorney John Durham to investigate the origins of what Barr summarized as ‘frenzied and baseless accusations of collusion’ between the 2016 Trump election campaign and Russia… So a key test of Garland, if he is confirmed, is whether he will allow Durham to continue the Russia investigation or whether he will give in to political demands from Democrats to terminate the investigation. The premature ending of the probe would be a bad sign that politics is once again a prime consideration in the administration of the Justice Department.”

The Wall Street Journal editorial board wrote that Garland is actually fulfilling Biden’s promise to turn down the temperature on partisan rancor.

“For more than two decades he has been a mainstream center-left judge with a calm temperament and no demonstrated interest in settling scores or legal ‘Resistance,’” it wrote. In his remarks Thursday, Mr. Garland quoted Supreme Court Justice Robert Jackson who said prosecutors should serve ‘the law and not factional purposes…’ The Biden Administration will still be legally liberal, and perhaps aggressively so… Yet amid explosive partisan tensions, the most important Justice priority is to restore confidence that the federal government’s greatest domestic powers are accountable and not abused for political ends. Mr. Biden’s choice of Judge Garland over a more polarizing pick bodes well for his Administration.”

My take.

It’s a fool’s errand to argue that Garland isn’t qualified or doesn’t deserve this job. He is, after all, someone who in a normal time — under a normal Senate leader — would have cruised to a lifetime appointment on the Supreme Court. His experience, independence and centrism are all well known, and there is perhaps no time in American history where we more desperately need that at attorney general.

But anytime you read about Garland’s record you’ll notice a trend: every article hedges that there is one exception, one asterisk to his nomination. He’s not very moderate, and is, in fact, fairly right of center on police accountability.

As a prosecutor, Garland has a seemingly perfect record of siding with police. Damon Root, the Libertarian writer at Reason, made this case in 2016 when Garland was up for a Supreme Court seat. In fact, Root is one of the few people who has broken the fog of adoration and written critically about Garland:

Garland's votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." Likewise, Garland voted in support of the George W. Bush administration's controversial war on terrorism policies in the Guantanamo detainee case Al Odah v. United States, in which Garland joined the majority opinion holding that enemy combatants held as detainees at the U.S. military facility at Guantanamo Bay were not entitled to habeas corpus protections. The U.S. Supreme Court ultimately overruled that decision, holding in the landmark case Boumediene v. Bush that Guantanamo detainees do enjoy habeas corpus rights.

Any reader of this newsletter knows one of my priorities as an American is advocating for reforms in our criminal justice system that focus more on rehabilitation, less on incarceration and that hold police more accountable for their actions when they screw up on the job. I’m no longer sure if that is a “left” position or a Libertarian position or a Kim Kardashian position, but it’s my position.

Nobody in the country will have more power to make those reforms a reality than Garland, yet he seems to be the one perfect candidate uniquely set up to balk at them. The good news is that Garland is being joined by Kristen Clarke, president of the National Lawyers’ Committee for Civil Rights, who will lead the department’s Civil Rights Division. That’s an encouraging sign, and leaves the door open for public pressure on Garland to move his views in a way that reflects the public desire for reform — I’ll be keeping a close eye on what he does.

Your questions, answered.

Q: Would you be able to explain or discuss what type of votes in the senate requires 51 votes to pass and what types of legislation require additional votes to pass?

— Jake, Pittsburgh, Pennsylvania

Tangle: This is one of the most important questions of the next two years (until the 2022 Senate races).

Generally speaking, the Biden administration and Democrats can do a few things with their 50-50 Senate majority, a tie broken by the vote of Kamala Harris. They can confirm all of their judges with no defections, they can decide what actually gets to the Senate floor for a vote, and they can pass short-term spending bills. The majority also gives Biden control of the chamber, meaning Democrats decide who chairs the various committees.

This perfect split has only happened three times in U.S. history, and the last time was in 2001 after a senator’s death (it only lasted a few months). Back then, Senate leadership decided to actually split the power evenly — giving out committee leadership roles to both Democrats and Republicans. McConnell previously suggested he would aim to “replicate” the model now, though 20 years later he’s largely blamed for the very polarization of the Senate that makes such an idea sound out of the question and absurd.

Crucially, Democrats can pass spending bills using the legislative mechanism called “reconciliation.” This is the process Republicans used for their tax bill in 2017. Essentially, they need 60 votes for major legislation unrelated to the budget, but they can use reconciliation to get to 51 votes for certain kinds of bills — though it’s a wonky and tactical process that requires a lot of negotiating, and that senators follow the “Byrd rule.”

Perhaps the most likely outcome is a series of changes to the Affordable Care Act. Democrats will almost certainly use reconciliation to push for more insurance subsidies and to get better coverage to low-income Americans in states that haven’t expanded Medicaid, according to The New York Times. Medicare for All, on the other hand, stands almost no chance of passing without a 60-vote majority.

On the whole, though, the slim majority means an uphill climb on progressive priorities like climate change or immigration reform. One thing I will say is that Schumer controlling the floor changes the dynamics entirely. For much of the last decade, Republicans have been able to simply refuse to vote on some policy issues that have broad public support — meaning they also avoid any public accountability. That’s about to change. If Senate Democrats can get votes on issues like, say, another round of stimulus checks or an expansion of the Affordable Care Act, a lot of Senate Republicans will face a new level of public pressure in roll call votes without the protection of the Majority Leader. It’ll be interesting to see how that changes things.

I’ll also be keeping an eye on how Biden handles tax law. Republicans passed the 2017 tax bill that has since become rather unpopular and is viewed widely as a windfall for the rich. Repealing that law will be tough, given that it also temporarily cut taxes for middle-income earners, but there’s been talk that Biden could also beef up the IRS to track down wealthy tax cheats and make sure they pay their share. That’s the kind of reform Republicans would have a hard time opposing publicly.

There’s also the possibility Biden could still get traction with his $2 trillion clean energy plan — a massive infrastructure project that could create jobs and might garner the 10 moderate Republican votes needed. That’s the kind of legislation that would whip up support from progressives, unify the Senate caucus, and might even bring over a few Republicans who want to address climate change and want to be able to show their constituents they brought jobs home to their state.

A story that matters.

The Trump administration is unveiling a plan to speed up vaccine distribution. New guidelines will allow the process to open up to anyone over the age of 65 in an attempt to get vaccines out the door faster and broaden the target group. Early on, high-risk people were supposed to get to the front of the line, but the vaccine pace has moved so slowly that the administration has decided to update its guidelines. The federal government is also deciding to get all the vaccine doses out the door now, rather than holding back doses for the second shot, banking on the supply increasing enough to fulfill second doses in time. “These changes reflect a changing consensus about how best to distribute the vaccines — shifting away from a strict risk-based prioritization system, toward prioritizing getting as many shots into as many arms as possible, as quickly as possible,” Axios reports.


  • 30,000. The number of Americans who died because of COVID-19 in the first 10 days of 2021.
  • 8%. The percentage of all COVID-19 deaths in America that happened in the first 10 days of January.
  • 367,393. The total number of Americans who have died of COVID-19.
  • 9 million. The number of Americans who have been inoculated with the COVID-19 vaccine.
  • 25.5 million. The number of COVID-19 vaccines that have been distributed to states.
  • 15,000. The approximate number of National Guard troops headed to Washington D.C. to secure the city for the inauguration.
  • 33%. Trump’s approval rating in the latest Quinnipiac poll, his all-time low.
  • 70,000. The number of QAnon-related Twitter accounts purged from the platform this week.

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In 2017, plumber James Anderson was called to a job for a second opinion. He discovered that his elderly client was about to become the victim of a con job to cough up more than $6,000 for work that didn’t need to be done. In response, Anderson founded Depher (Disabled and Elderly Plumbing and Heating Emergency Response), a company that helps elderly and disabled people with their plumbing and heating, no matter the cost. Based in the United Kingdom, Anderson has expanded across the country, spent more than $77,000 helping over 10,000 vulnerable families get low or no cost help with their plumbing and heating, and created a GoFundMe page to help as many people as he can.

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