The most puzzling thing about the announcement Thursday that Attorney General Eric Holder is resigning was the timing. Holder had already told The New Yorker’s Jeffrey Toobin that he planned to be gone by the end of this year, so the bare fact of his wanting to leave after six years shouldn’t have been a big surprise to anybody who’s been paying attention.
Formally announcing the decision to resign only after Congress had left town, not to return until after an election in which the Democrats could well lose control of the Senate, though, was strange. Of course, barring an unlikely fit of highmindedness, the president will probably get whoever he wants as his next AG, assuming the person he picks isn’t too offensive to the Democratic base. But Holder’s timing did his successor no favors.
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Congress will return for a post-election “lame duck” session in November. Even if Democrats were to lose the Senate in November’s mid-term elections, Sen. Harry Reid (D-NV) would remain majority leader until mid-January. And because he exercised the so-called “nuclear option” in November of last year, eliminating the minority’s ability to filibuster the president’s judicial and executive branch nominees, even a Senate run by Democrats on their way out of power will be able to confirm whomever the president nominates.
That said, confirmation under those circumstances, while legal, would open Holder’s successor to accusations that his or her confirmation was illegitimate. They would be legally false, but politically potent.
Judging from the comments made by influential Republican lawmakers on Thursday, that’s exactly the line of attack they are likely to take if the President’s next attorney general is confirmed by a Democratic Senate that has already been voted out.
"To ensure that justice is served and that the attorney general is not simply replaced with another extreme partisan who will likewise disregard the law, the Senate should wait until the new Congress is sworn in before confirming the next Attorney General,” Sen. Ted Cruz (R-TX) said in a statement. “Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder’s successor would be an abuse of power that should not be countenanced.”
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Senate Minority Leader Mitch McConnell (R-KY) said Thursday, “Holder has placed ideological commitments over a commitment to the rule of law. These are not the qualities the American people look for in the nation’s highest law-enforcement official. So I will be scrutinizing the President’s replacement nominee to ensure the Justice Department finally returns to prioritizing law enforcement over partisan concerns.”
This is what makes the timing of Holder’s announcement so strange. Rather than providing the president with a runway of several months to get a new AG nominee through Congress before the election, his announcement Thursday created a real chance that his successor will have to spend two years operating under a cloud of conservative criticism.
That said, in a statement Thursday, Majority Leader Reid left little doubt that he expects whomever the president nominates to get confirmed. “It is my hope,” he said, “that my Republican colleagues will work with Senate Democrats to give swift and fair consideration to President Obama’s next nominee for this important position.”
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Translated, that means that whoever gets nominated is probably going to clear the Senate whether Republicans like it or not. And granted, whoever it is will be the subject of Republican criticism from the moment he or she is nominated until the day the next president takes office.
It also means that the job of the president’s next AG, at least from a public relations perspective, could wind up being a lot harder than it needed to be had Holder announced his resignation a few months earlier.
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