Transition Tracker: Biden picks Merrick Garland to lead Justice Department

Prior to taking office on January 20, 2021, President-elect Joe Biden (D) and his team must prepare for the transition between presidential administrations, including selecting senior White House staff and appointees to top government positions.

In 2016, there were 1,714 government positions subject to presidential appointment: 1,242 positions required Senate confirmation and 472 did not. The new administration is also responsible for filling thousands of other positions across the federal government, including in operations and policy. Every weekday, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Congress Counts Electoral Votes, Declares Biden Winner

Congress convened a joint session on Wednesday to count electoral votes by state and confirm the result of the presidential election.

As president of the Senate, Vice President Mike Pence (R) presided over the proceedings. To object to a state’s count, one member each from the House and Senate had to submit a written objection after the body read the vote count from a particular state or D.C. After time for debate—a maximum of two hours—both chambers voted by a simple majority to concur or reject the objection.

Thousands of supporters of President Donald Trump (R) went to the Capitol Building as Congress was in its joint session. Around 2:15 p.m. ET, both chambers recessed as the group breached the Capitol and the building went into lockdown. The group trespassed through several security barriers, leading to altercations with police and other security officials. Hundreds reached the interior of the Capitol and vandalized the building. Pence and House Speaker Nancy Pelosi (D-Calif.) were evacuated. Other members of Congress evacuated or sheltered in place. Four people died, including one woman shot and killed by Capitol Police.

After the Capitol was secured, Congress reconvened after 8 p.m. ET to continue with the count. Members submitted objections for six states. Two objections were formally presented by a Senate and House member:

  • Arizona: The Senate voted against sustaining the objection to Arizona’s electoral votes by a vote of 6-93. The House voted against sustaining this objection by a vote of 121-303.
  • Pennsylvania: The Senate voted against sustaining the objection to Pennsylvania’s electoral votes by a vote of 7-92. The House voted against sustaining the objection by a vote of 138-282.

Four states were counted following incomplete objections presented by a U.S. House member without a U.S. senator:

  • Georgia
  • Michigan
  • Nevada
  • Wisconsin

At 3:40 a.m. ET, Pence declared Biden the winner of the presidential election with 306 electoral votes and concluded the joint session.

Since the 1887 passage of the Electoral Count Act, there have been two instances of congressional objections. In 1969, an objection was raised against the North Carolina electoral votes, which was rejected 58-33 in the Senate and 228-170 in the House. In 2005, an objection was raised to the Ohio vote. It was rejected 74-1 in the Senate and 267-31 in the House.

Appointments and Nominations

Merrick Garland, U.S. attorney general

Biden announced on Thursday that he had selected Merrick Garland, a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit, as his nominee for U.S. attorney general. Garland previously worked at the Department of Justice, where he led prosecutions related to the Oklahoma City bombings and the Unabomber case. He was a deputy assistant attorney general for the Criminal Division and a principal associate deputy attorney general. 

Garland was previously nominated by President Barack Obama (D) to the Supreme Court.

Biden announced three other Department of Justice nominations:

  • Lisa Monaco, deputy attorney general
  • Vanita Gupta, associate attorney general
  • Kristen Clarke, assistant attorney general for civil rights


  • Operation Warp Speed leader Moncef Slaoui will continue to work in the Biden administration as a consultant. He said on Wednesday, “I will continue to support as needed, I think we are getting close to the point where my value add is more limited and therefore I’ll expect my activity to decrease gradually after January 21.” 
  • Biden is expected to name the National Security Agency’s director of cybersecurity, Anne Neuberger, to a newly created position on the National Security Council focused on cybersecurity. 

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