Testifying before Senate Judiciary Committee Hearing on Nomination of Merrick Garland to be Attorney General
I am honored to testify as an outside witness for Judge Garland’s confirmation hearing. I support Judge Garland’s swift confirmation, but will flag three current DOJ policies that he should maintain. You can watch the video of the hearing here.
Here are my prepared remarks:
Chairman Durbin, Ranking Member Grassley, thank you for inviting me to testify. My name is Josh Blackman and I am a constitutional law professor at the South Texas College of Law Houston.
I support the confirmation of Judge Garland. He should be swiftly confirmed. In my brief time today, I will discuss three current DOJ policies that I hope Attorney General Garland will maintain. First, DOJ lawyers should not give legal effect to so-called “rulemaking by guidance.” Second, Attorney General Garland should carefully scrutinize consent decrees, especially those reached through so-called “sue and settle.” Third, DOJ should not resume the settlement practice of giving “third party payments” to nonparties; that money should be restored to the Treasury. These three issues may seem fairly low-profile, but each practice will have a huge impact on the separation of powers. And these issues should be important to people on both sides of the aisle. I hope that Attorney General Garland will retain current DOJ policy with respect to these three issues.
First, the Department of Justice should not enforce “rulemakin
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