Department of Justice, Drugs, Eric Holder, Federal Government, Immigration, Politics, Senate Judiciary Committee

When The Confirmation Of The Next Attorney General Gets Political, Thank Eric Holder

The battle to confirm Eric Holder’s successor will be messy, according to conservative columnist Tamara Tabo.

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President Obama formally announced the resignation of U.S. Attorney General Eric Holder this week. Filling the position ordinarily poses a political challenge, but installing Holder’s successor will be particularly rancorous. And we have Eric Holder himself to thank for that.

With Congressional midterm elections weeks away, confirmation hearings for a new AG any time soon seemed unlikely at first. However, Senator Patrick Leahy (D – VT), the chair of the Senate Judiciary Committee, announced that he intends to urge the confirmation process onward. “Definitely, we should have confirmation hearings as quickly as possible in the Senate,” Leahy told MSNBC’s Andrea Mitchell. Changes to Senate rules allow debate to end over executive and judicial branch nominees (except for nominees for Supreme Court vacancies) with a simple majority vote, rather than a supermajority of 60 votes. At least until the January 2015 session, when the Senate can revisit the rule change, Senators cannot filibuster the vote on Eric Holder’s potential successor. No matter what shifts occur after the upcoming elections, Republicans hold only 45 seats in the Senate until January 2015. So, Democrats acting quickly hold an advantage. However, Democratic senators facing dicey election contests may not be enthusiastic about their party’s push for hearings before the election.

The AG confirmation process opens a new battlefield in the war between supporters of President Obama and his critics. The battle to confirm Eric Holder’s successor promises to be messy. Senate Republicans will treat the process as a referendum on everything President Obama has done — possibly everything his critics suspect he might want to do. Washington politics makes this sort of fight possible. The timing of Holder’s resignation, a few weeks ahead of Congressional midterm elections, makes this plausible. But Eric Holder himself made this battle necessary.

So, how did Holder generate so much bad blood?

Well, few signs indicate contempt for — and on the part of — Congress like being held in contempt of Congress. Unwilling to fully account for the Obama administration’s participation in the Fast and Furious gunwalking scandal, Eric Holder became the first sitting member of a U.S. President’s Cabinet to be held in contempt. The confrontation and the issues surrounding it guarantee that the next AG nominee will face a tough crowd during Senate confirmation hearings.

In the background, there’s Operation Fast and Furious, the now-infamous Bureau of Alcohol, Tobacco, Firearms and Explosives operation in which the President’s administration intentionally allowed guns to wind up in the hands of Mexican drug cartels. The operation aimed for the guns to be later found at crime scenes, a consequence that might help ATF to better target future gun-control policies. Guns from the Fast and Furious operation were found at the murder scene of Border Patrol Agent Brian Terry and others, drawing attention to the Fast and Furious scheme. While the initial investigation into the operation sparked controversy, the administration’s response ignited more.

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Appearing before the House of Representatives, Holder refused to turn over documents about why the administration has been stonewalling — and possibly lying to — Congressional investigators. Judicial Watch attempted to get hold of important Fast and Furious documents by filing a Freedom of Information Act request, which the DOJ denied. The DOJ continues to fight the subsequent FOIA suit. This week, a federal court ordered the administration to produce what is known as a “Vaughn index.” The Vaughn index must identify each document that the administration has withheld, the statutory exemption from FOIA the administration has claimed, and an explanation of how disclosure would be damaging. The U.S. District Court for the District of Columbia ruled that the DOJ must submit the Vaughn index by October 22.

No wonder Holder resigned when he did. If he remained in office, he would face bitter fights with both the judical and legislative branches. Even once Holder himself no longer occupies the AG’s office, his successor is likely to adopt a similar attitude toward members of Congress and the courts. After all, Holder was not simply acting on his own behalf when getting snippy with Congress. He was representing President Obama’s administration. Why think the next person representing the president will do differently?

Of course, nastiness with congressional investigators is not the only way that Holder ensured that finding his replacement will be especially political. Many members of Congress want to be sure that the next AG is considerably less comfortable with the term “selective enforcement” than Holder has been.

With Holder at the helm, the Department of Justice has opted out of enforcing a lot of laws. Key in the minds of Republican senators, Holder softened the nation’s policy on the enforcement of immigration laws, using executive amnesty to circumvent an intransigent Congress. Senator Jeff Sessions released an opening salvo yesterday, making clear that Republicans intend to use the AG confirmation process as an opportunity to debate the President’s policies. He told Breibart News, “No Senator should vote to confirm anyone to this position who does not firmly reject the President’s planned executive amnesty — or any other scheme to circumvent our nation’s immigration laws — and who does not pledge to serve the laws and people of the United States.” President Obama, by tabling serious discussion of immigration reform until after the midterms, may have dashed Republicans’ hopes to make immigration an issue in the elections, but he revived their hopes by letting Holder resign now. Republicans get to treat the AG nomination as an immigration issue only because the administration treated its law enforcement authority like lawmaking authority.

Holder’s efforts to expand executive power set a dangerous precedent, whether you like the outcome or not. Under Holder’s leadership, the DOJ significantly altered its enforcement of drug laws. Even those of us who cheer reform of U.S. drug policy should have a difficult time forgetting how Holder achieved this end, to the extent that he did. In these and other instances, Holder acted politically, perhaps unconstitutionally. When the country’s top prosecutor helps the country’s chief executive to start acting as the country’s actual lawmaking authority, Congress is bound to notice. And Americans, along with their legislators, are likely to view the position of Attorney General in more political terms than they otherwise would have.

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Observers expecting that U.S. Solicitor General Don Verrilli is a relatively safe bet among more politically-charged alternative nominees for the AG job ought to pause. In 2011, the Senate confirmed Verrilli for his current job by a 72-16 vote. The Senate Judiciary Committee approved his nomination by a 17-1 vote. The lone dissenter? Jeff Sessions, the same senator now rallying the Republican troops in the AG debate. Even nominating the current SG won’t quiet the debate to come.

President Obama calculated the timing of Holder’s resignation. Holder made no secret about his intention to leave before the conclusion of the president’s second term. Nominating an attorney general ahead of the midterms is a gutsy gamble, but it’s no accident. And Republicans saw it coming. Both sides are prepared to make the confirmation process a fight over the Obama administration’s policies, not a straightforward rubber-stamp approval of a competent prosecutor. As we endure a double-dose of political theatrics in the next few weeks, thank Eric Holder.

Earlier: Sources Say Eric Holder Will Step Down

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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