“Republicans need to be careful,” said Mike Davis, a former top GOP aide on the Judiciary panel. “Pick your battles.”
Davis, who now advocates for the confirmation of conservative judicial nominees as president of the Article III Project, advised GOP senators to thoroughly vet Garland and press him on the “the impartial administration of justice” but also limit the time they spend fighting Biden nominees who have bipartisan support.
“Unless something extraordinary comes out of Judge Merrick Garland’s confirmation hearing,” Davis added, “I doubt that anyone should be advocating for his defeat.“
Hawley is the only GOP senator so far to vote against every one of Biden’s Cabinet nominees. Neither he, Cruz, Cotton nor Sasse have signaled yet whether they’ll support Garland, though Sen. Lindsey Graham (R-S.C.), a former chair of the Judiciary panel, called the nomination a “sound choice” by Biden last month.
The four senators are already carving out starkly different lanes for themselves within the GOP as the party clashes internally over how or whether to move beyond Trump while still appealing to his legion of followers. Both Hawley and Cruz challenged the certification of the 2020 election results on Jan. 6, sparking bipartisan backlash from their colleagues. Cotton and Sasse both supported certification.
Of the committee’s four GOP senators in the mix for 2024, Sasse was the only one who voted to convict Trump during the impeachment trial.
While the Garland hearing is not expected to bring political fireworks, the GOP quartet — and other Republicans on the committee — could use his confirmation as a way to preview which policy fights they plan to wage with the Biden administration. The committee’s broad jurisdiction offers ample opportunity to weigh in on areas important to the party’s base, including immigration, judicial confirmations and DOJ’s investigation into Hunter Biden’s business dealings.
“It really is an opportunity for the Republicans — not so much to score points against Judge Garland, but to try to draw lines on legal, policy and constitutional questions,” said Ed Whelan, a conservative legal activist.
A Sasse spokesperson said that the Nebraska Republican plans to probe Garland’s views on the limits of executive powers as well as how he “plans to handle politically sensitive investigations in a way that can build confidence in the Department’s independence.” Sasse also will likely ask for a commitment “to bringing Jeffrey Epstein’s co-conspirators to justice,” the spokesperson said, referencing the convicted sex trafficker whose relationships with the political and business elite and whose death in jail has sparked a wave of conspiracies.
Cruz, meanwhile, sent a letter to Senate Judiciary Chair Dick Durbin (D-Ill.), signed by Hawley, Cotton and six other Republicans on the committee, that signaled he plans to press Garland on whether DOJ will investigate New York Gov. Andrew Cuomo’s handling of nursing home deaths from Covid.
During Monday’s hearing, Hawley touched on a polarizing political issue by asking Garland whether he supported calls from progressives for defunding the police. Garland responded that Biden “does not support defunding the police and neither do I.”
Cotton, meanwhile, pressed Garland on why he wouldn’t commit to providing Special Counsel John Durham with the resources needed for his investigation into the origins of the FBI’s Trump-Russia probe. Garland told Senate Republicans he needed to learn more but that he saw no reason for removing Durham.
Cotton didn’t appear satisfied with Garland’s answer, contrasting it with a similar commitment that former Attorney General William Barr made during his confirmation hearing to lead Trump’s DOJ.