Government

Justice (Department) Delayed, Justice Denied: The DOJ Nominations Backlog

Key DOJ components, such as the Criminal Division and National Security Division, still lack Senate-confirmed leaders.

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Main Justice (by Coolcaesar via Wikimedia)

Despite the controversies that continue to dog his administration, when it comes to appointing federal judges, President Donald Trump is a veritable “Stable Genius.” Or, at the very least, he’s quietly effective — and maybe effective because he’s quiet. He might not tweet much about judicial nominations compared to other subjects, but President Trump is reshaping the federal judiciary — and now holds the record for the most federal appellate judges confirmed in the first year of a presidency.

But when it comes to staffing the executive branch, the Trump Administration is a bit… SAD. Of 626 key positions requiring Senate confirmation, just 241 have been filled with Senate-confirmed appointees.

Some of this is the fault of the administration, which hasn’t nominated anyone for 245 of the 626 posts (39 percent). But some is the fault of the Senate — which is certainly the case when it comes to U.S. Department of Justice nominations.

When you look at DOJ noms, you’ll see five important positions where the president has made a nomination but the Senate has failed to act. As of this writing (check the latest confirmations on the Senate website), the Department still needs the Senate to confirm leaders — in DOJ parlance, “Assistant Attorneys General” — for a quintet of crucial components: the Criminal Division, the National Security Division, the Civil Division, the Civil Rights Division, and the Environmental and National Resources Division. There are also about a dozen U.S. Attorney nominees still pending in the Senate.

The backlog is starting to attract attention. As former DOJ Inspector General Michael Bromwich told Carrie Johnson of NPR, “Vacancies impair the smooth and effective functioning of DOJ. It’s not a recipe for good government.” As former attorney general William Barr told Matt Zapotosky of the Washington Post, “To me, what’s happening is reprehensible…. This is unprecedented. Anyone who has worked in an administration knows how damaging it is.”

I spoke with two current Justice Department officials earlier this week, and they echoed these sentiments. “It’s frustrating and disruptive,” one of them said. “The acting leaders are doing a good job, but you always want to have your Senate-confirmed leaders in place. The acting heads can steer the ship, but they can’t make all the big, long-term decisions.”

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“We are a year into the administration,” he pointed out, “and we still don’t have a chief of the National Security Division and the Criminal Division.”

Given the missions of these divisions — keeping Americans safe from crime and terrorism — this is a problem. Deputy Attorney General Rod Rosenstein, confirmed by the Senate as an Obama nominee (U.S. Attorney for Maryland) and again as a Trump nominee (Deputy Attorney General), said the following in a recent public appearance about the Senate confirmation process [UPDATE (1/11/2018, 2:06 p.m.): Rosenstein was actually appointed by President George W. Bush to serve as U.S. Attorney, but President Obama kept Rosenstein on the job — a testament to his stellar reputation and lack of partisanship — and Rosenstein ended up serving for all eight years of the Obama administration.]:

It takes too long to get through the process…. If people are unobjectionable, then there’s no excuse for this process being delayed. I see things like senators who are upset about something completely unrelated to our nominee, so they’re going to punish the nominees. These are people who are like you, in private businesses, who have agreed to set aside their private interests, in most cases to take pay cuts. It’s disruptive to their lives. They can’t make commitments to clients. They’re required to wait months and months and months, even though they’re ultimately going to get confirmed…. The process would be much better if we could find a quicker way to get to the conclusion.

Rosenstein gave a concrete example of how the delay is affecting the Department’s work and his own work in particular:

We have no Assistant Attorney General for the National Security Division. That division is responsible for protecting Americans from terrorism, our number one priority. Our nominee is a man with exceptional experience. His name is John Demers. He’s exceptionally experienced, he’s not partisan, he wants to do the right thing and do this job, and he has not been confirmed. There’s no explanation, no legitimate explanation, for why someone like that can’t get on the job….

There are only three officials in the Department of Justice who are authorized to sign Foreign Intelligence Surveillance Act (FISA) applications… the Attorney General, the Deputy Attorney General, and the Assistant Attorney General for National Security. Whoever is there, and lowest on the totem pole, spends a half hour of their day signing those [warrant applications]. The Attorney General did it from February through April, and I’ve been doing it from April through January. And when John gets there, I’m going to have an extra half hour every day.

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This generated laughter from the audience. But kidding aside, I agree with Benjamin Wittes (no cheerleader for the Trump Administration) of Lawfare (the excellent national-security site): “It’s nuts that there’s no Senate confirmed leadership of the National Security Division at DOJ. Really.”

This is especially true in light of the lack of controversy over the nominee to lead the NSD. John Demers, currently Vice President and Assistant General Counsel at Boeing, boasts ample qualifications. The Harvard Law grad and former Supreme Court clerk has worked as corporate counsel (at Boeing), in Biglaw (at Ropes & Gray), and at the Department of Justice — as Deputy Assistant Attorney General for National Security, the division he would lead if confirmed. (Disclosure: John Demers and I clerked for the same judge, Judge Diarmuid F. O’Scannlain of the Ninth Circuit, and I consider John a friend.)

Who deserves blame for the DOJ delays? Some blame belongs to the Trump Administration, which focused its early efforts on judicial nominations, such as Justice Neil Gorsuch to SCOTUS, and could have been faster on executive-branch nominations. Demers, for example, was not officially nominated to lead the NSD until September.

Much of the blame belongs to Senate Democrats. They are using procedural roadblocks to stop or slow down many nominees that they don’t actually oppose, as explained by Carl Hulse of the New York Times:

Here is what is happening: Democrats are requiring that Republicans check all the procedural boxes on most nominees, even those they intend to eventually support. That requires the Senate majority leader, Mitch McConnell, Republican of Kentucky, to request a formal “cloture” vote to move forward.

An “intervening day” is then required to allow the cloture request to “ripen.” Next is a vote to impose cloture followed by 30 hours of “post-cloture” debate before a final vote. Democrats have refused to shorten the debate time — to “yield back,” in the parlance of the Senate — though in most cases there is little to debate….

Republicans calculate that at the current rate, it will take 11 years and four months to fill all possible Trump administration spots at an average of three and a half days spent considering each nominee.

Eleven years? Don’t expect this abuse of process to continue indefinitely. Republicans are already talking about “streamlining” the confirmation process to dispense with the 30 hours of “debate” (which isn’t actual debate, just the burning up of Senate floor time). If this happens, it would be similar to what happened with the filibuster and then the blue slip for nominees: both practices got abused, by both parties, and both practices got blown up. This is why senators can’t have nice things.

A second Department official I spoke with sees bad faith on the part of the Democrats. In his view, they are abusing the nominations process to do what they can’t do through legislation.

“The Democrats want to keep the DOJ crippled as long as they can,” a second DOJ official complained to me. “They figure that the weaker the Department leadership is, the more difficult it is for the administration to accomplish its objectives.”

“It’s very clear that the Dems are being slow,” he continued. “Why do we have to break filibusters to get confirmation of Engel, Francisco, and Brand?” (The nominees referenced by this official — Assistant Attorney General for the Office of Legal Counsel Steven Engel, Solicitor General Noel Francisco, and Associate Attorney General Rachel Brand — all took quite some time to confirm, despite impeccable credentials and uncontroversial backgrounds.)

The Democrats wouldn’t admit that they are dragging their feet on nominations to throw a wrench in the DOJ works — but Professor Rory Little displays more candor:

What do the Democrats have to say for themselves? Senator Chuck Schumer (D-N.Y.) told the Washington Post, “Given that it is the fount of the judicial system and the sensitivity of its mission, there is no department that needs more scrutiny than DOJ. There is bipartisan opposition to many of the nominees due to the lack of independence that many of the nominees and appointees have demonstrated.”

But in some cases — many cases — there isn’t. The nomination of John Demers to lead the National Security Division, for example, has already been reported out of both the Judiciary and Intelligence Committees, without opposition. As noted by Betsy Woodruff of the Daily Beast, Demers is widely regarded as “unobjectionable,” and “people in the national security space were largely pleased and relieved that Trump nominated him for the influential post.”

Now, in fairness to the Democrats, the Republicans are far from blameless. During the Obama Administration, they too used a wide range of procedural tools and tricks to hold up numerous eminently qualified nominees — most (in)famously, Judge Merrick Garland and his nomination to the Supreme Court, but lots of lower-court and executive-branch nominees as well.

And also in fairness to the Democrats, some of the current obstruction of nominees comes from Republican members of the Senate. For example, Senator Cory Gardner (R-Colo.), infuriated over the DOJ’s new guidance on enforcing criminal laws against marijuana, has declared that he will “take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”

On the Demers nomination, some of the opposition apparently emanates from a different Republican. As reported by the Daily Beast, Senator Rand Paul (R-Ky.) is holding up the Demers nomination over the controversial subject of reauthorizing Section 702 surveillance, aka NSA surveillance without a warrant.

This struck one of the DOJ officials I spoke with as… a bit rich. “The nomination of the head of the National Security Division is being blocked over his support for a provision that is vital for national security.”

But even if one opposes or has concerns about Section 702 surveillance, the best response for Congress is to reform or repeal Section 702 (which it’s currently in the process of doing). As John Demers explained at his Judiciary Committee hearing — sounding a bit like his former boss, the late Justice Antonin Scalia — if Congress has a problem with Section 702, then Congress should fix the problem with appropriate legislation. The DOJ and NSA will, of course, comply with congressional direction. This would be much better than indefinitely delaying the confirmation of a key national-security official who performs many important but uncontroversial duties, like approving FISA applications.

In other words, if Congress doesn’t like what the DOJ is up to, then Congress can and should pass laws directing the Department to act otherwise. For example, if Congress doesn’t like the DOJ’s approach to enforcing marijuana laws, then it should renew the Rohrabacher–Farr amendment, which prohibits the Justice Department from spending federal funds to interfere with the implementation of state medical cannabis laws (or Congress can even expand the prohibition to protect recreational cannabis). This would be a nice example of separation of powers at work, the legislature using its spending power or “power of the purse” to block unwanted action by the executive.

In the meantime, despite the challenges posed by partially filled leadership ranks, the women and men of the Justice Department continue their work in service of the American people.

“The attorney general and everyone here have been doing a good job of advancing Justice Department goals despite not having full leadership in place,” one DOJ official told me. “But once we do have that leadership, then we’ll be able to move much faster and more effectively.”

Key Vacancies At Justice Department ‘Not A Recipe For Good Government’ [NPR]
The Justice Department lacks key leaders, and a Republican senator is threatening to keep it that way [Washington Post]
Rod Rosenstein Comments on Confirmation of DOJ Officials [YouTube via Twitter (Benjamin Wittes)]
Democrats Perfect Art of Delay While Republicans Fume Over Trump Nominees [New York Times]
Republican Senator Rand Paul Freezes Trump Nomination Over NSA [Daily Beast]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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