Isn't Merrick Garland too conflicted to be Attorney General because he is a former Chief Judge on the US Court of Appeals for the D.C. Circuit?

After his Chief Judgeship, Garland was nominated by and is serving under a Democratic President, Garland as Attorney General manifests that he's most probably Democratic. Then some people can regard his previous judgements with a Democratic slant. Or worse, they can tie his previous judgments with Democratic Party, and/or regard his previous judgments as judicial activism for the Democrats.

If Garland hadn't worked for any executive branch after his judgeship, then we might have never known his political affiliation. The party that nominated a Judge of the US Court of Appeals can differ from the judge's preferred political party. I know judges to US Court of Appeals must be nominated by U.S. President. But just because Bill Clinton appointed Garland, doesn't prove Garland leans Democratic.

Here are two examples. George H.W. Bush appointed David Souter to the U.S. Court of Appeals for First Circuit, then to SCOTUS. But Souter's politically progressive judgments make him more Democratic than Republican. Richard Nixon appointed John Paul Stevens to the US Court of Appeals for the Seventh Circuit, then Gerald Ford appointed Stevens to SCOTUS. Again, Stevens's political progressive judgments entitle you to argue that Stevens is Democratic.

I see no modern equivalent to Garland on the list of U.S. Supreme Court justices who also served in the U.S. Congress or on the list of people who have served in all three branches of the United States federal government.

  • 4
    The US judicial system seems to be largely built on partisanship, whats unique about this person and appointment?
    – user16741
    Commented Sep 20, 2021 at 6:23
  • 2
    There are precedent of federal judges resigning to become AG.
    – Panda
    Commented Sep 20, 2021 at 6:25
  • There are only two functional parties in USA politics. If they weren't on one side, they'd have to be on the other, because nobody else gives enough support to have got there in the first place. So what is the selector meant to do, take one from "their" side and be called biased, or give up a spot to the "other" side?
    – Nij
    Commented Sep 20, 2021 at 11:26
  • 1
    Most judges were former prosecutors which isn't always great ... so this really seems like a non-issue Commented Sep 20, 2021 at 14:23
  • Probably not more corrosive than fairly overt politically-linked associations that judges belong to such as the en.wikipedia.org/wiki/Federalist_Society Commented Sep 20, 2021 at 15:41

2 Answers 2


There is no conflict of interest here.

First of all, this is not unique or unusual. There have been several instances of judges resigning to accept cabinet appointments in the United States

Moreover, what you identify as a Conflict of Interest is simply not what Conflict of Interest means. To wit:

A conflict of interest (COI) is a situation in which a person or organization is involved in multiple interests, financial or otherwise, and serving one interest could involve working against another.

If, somehow, Merrick Garland were serving as both the Attorney General and a Federal judge at the same time, that would be a conflict of interest. So long as Merrick Garland resigned his judicial appointment prior to accepting the role of Attorney General, however, he's in the clear.

Part of training as a lawyer (and therefore a judge) involves specific training in how to identify COIs, how to navigate them, and the fact that as an attorney, regardless of your personal feelings on the matter, you are ethically obligated to provide zealous advocacy for your client's objectives. The legal profession takes these ethical rules very seriously.

What you are referring to in your question is, instead, is political optics. Optics is a matter of marketing strategy, not one of serious ethics concern. While you are correct that Merrick Garland's appointment may be viewed as corrosive to the esteem of the office of the AG, or the Federal bench (you, yourself, seem to think so) - the practical fact is that this is true of literally any appointment. No matter who gets nominated, someone is going to find the appointment objectionable for some reason. If this is permitted to interfere with the appointment process, the whole system locks up and nothing happens ever again.

In politics, you have to learn to live with that fact: you can't make everyone happy, all of the time. Instead you must balance the costs - in social capital - of each decision you make and the relative benefits therefrom. In the case of Merrick Garland, a Democratic nominee for SCOTUS intended to appease and appeal to a Republican-led legislature, I suspect the cause for alarm is far less than you seem to perceive.


Federal judges are appointed by the Executive, so being appointed again to a different position isn't that weird. It is uncommon for a judge to resign and become a lawyer again, as in general judge is viewed as more prestigious. There isn't much of a conflict of interest in going from judge to attorney general, beyond cases currently in process or ruled on by his former court. The bigger issue is the massive conflict that could render the DC appellate court ineffective, as judges that served alongside him should recuse themselves in any case that gets there that Garland is involved directly in.

  • 1
    Why should a judge who served with him need to recuse themself from anything that he’s involved in? Garland should recuse himself from anything relating to a case he was involved in in the bench, but I don’t see where there’s a conflict in new cases being brought up.
    – Bobson
    Commented Sep 20, 2021 at 13:28
  • @Bobson Generally when there is a personal relationship between a judge and lawyer/plaintiff/defendant that is cause for a judge recuse themselves as they are no longer an independent party. A disagreement between judge Garland and another judge could color later actions for attorney Garland, which could be the basis for later appeals.
    – Ryathal
    Commented Sep 21, 2021 at 12:35

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