Virtually lost in the scandal surrounding the firing of FBI Director James Comey is that the President will now have to pick someone to succeed him as the head of the FBI. Speculation has run rampant concerning a list of potential new directors, and one name on that list is, according to Politico’s sources, Court of Appeals Judge Michael Garcia. He will interview with the President for the job this afternoon.
Judge Garcia, a former law clerk to then-Associate Judge Judith Kaye, was appointed to the Court of Appeals in February 2016, after a long and decorated career both in public service and in the private sector. Particularly, according to his bio, Judge Garcia served as an Assistant United States Attorney in the Southern District of New York for almost ten years before he became the Assistant Secretary of Commerce for Export Enforcement in the Bureau of Industry and Security. Judge Garcia also thereafter served as the Acting Commissioner of the Immigration and Naturalization Service at the United States Department of Justice, and as Assistant Secretary for Immigration and Customs Enforcement at the United States Department of Homeland Security. From 2005 to 2008, Judge Garcia was the United States Attorney for the Southern District of New York. He then returned to private practice at Kirkland & Ellis.
Judge Garcia is eminently qualified to lead the FBI, and would be a great pick. If he is chosen, however, the Court of Appeals will be left with only five Judges on the bench, with four votes required to reach a decision. In any case with a recusal, the Court would have to be unanimous. Judge Garcia’s potential appointment could leave the Court in a perilous position of being down two Judges until at least early fall, which appears to be the earliest that a judge could be appointed to fill the seat that was vacated after Judge Shelia Abdus-Salaam’s tragic death.
The question that gnaws at me is would Judge Garcia want the FBI Director role, especially now. It certainly would fit in with his prior experience as a US Attorney. The pay isn’t as good ($172,100 for the FBI Director, whereas a Court of Appeals Judge gets at least $192,500). Plus, the FBI Director only gets a 10-year term (and possibly shorter because the Director serves at the pleasure of the President), while a Court of Appeals Judge serves a 14-year term or at least until the year he turns 70. If it were me, I’d keep the Court of Appeals gig he already has, but everyone has their own aspirations. We will see.
On Wednesday, May 17th, Judge Garcia withdrew his name from consideration for the FBI Director. The FBI’s loss is the Court of Appeals’ gain. Judge Garcia would have been an excellent pick to lead the FBI given his fierce commitment to ethics and the pursuit of justice, but New York law is well served by keeping him on the Court of Appeals.