Continuing Confirmation Delays At The Department Of Justice
It's high time for these nominees to receive the confirmation votes they deserve.
U.S. Department of Justice (photo by David Lat)
In January of this year, I lamented the sluggish pace of confirmations to key positions at the U.S. Department of Justice. I focused in particular on the Senate’s failure to confirm Assistant Attorneys General for five key components of the DOJ: the Criminal Division, the National Security Division, the Civil Division, the Civil Rights Division, and the Environmental and National Resources Division.
It’s now seven months later. Has any progress been made?
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On the bright side, we now have Senate-confirmed AAGs for the National Security Division and the Criminal Division. John Demers was confirmed to lead the NSD on February 15 — by voice vote, underscoring the pointlessness of the delay in confirming him, considering the lack of controversy — and Brian Benczkowski was confirmed to lead the Criminal Division on July 11.
But the other three divisions I highlighted — the Civil Division, the Civil Rights Division, and the Environmental and National Resources Division — remain without Senate-confirmed leaders, a year and a half into this administration. And this is a big problem, as I explained in my earlier story:
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.”
It’s unfair to the Department, and it’s unfair to the nominees as well. In the words of Deputy Attorney General Rod Rosenstein:
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[These nominees] 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.
When a nomination is pending, a nominee generally cuts back on her public activity, such as speaking engagements and outside writing. For nominees in private practice — like Eric Dreiband, the Jones Day partner nominated to head the Civil Rights Division, and Jeffrey Clark, the Kirkland & Ellis partner nominated to head the Environmental and National Resources Division (ENRD) — having to retreat in this way hurts business development. You know what also hurts business development? When new clients ask if you’ll still be around in six months to work on their case, and you can’t give them a clear answer.
Dreiband, Clark, and Joseph “Jody” Hunt, the nominee to lead the Civil Division, have been in this limbo for quite some time. Jeff Clark was first nominated more than a year ago, on June 7 of last year, and his nomination was sent to the floor on August 3 — meaning that, as of today, he’s been waiting for a vote for a year. Eric Dreiband was first nominated more than a year ago as well, on June 29 of last year, and his nomination was sent to the floor on October 5. (Both were duly renominated by the president in January.)
To be sure, Clark and Dreiband would oversee controversial portfolios, and left-wing groups have predictably criticized them on various grounds. But much of what they would do once in office would be traditional DOJ work, enforcing federal law in the same way as any other administration. And there’s no disputing their qualifications. Clark, a Harvard and Georgetown Law graduate, served as Deputy Assistant Attorney General for the ENRD — a job one step below the one he’s been nominated for, and the best preparation for it — from 2001 to 2005. Dreiband, a Princeton and Northwestern Law graduate, previously served as the general counsel of the U.S. Equal Employment Opportunity Commission, another top civil-rights position in the federal government, from 2003 to 2005.
Jody Hunt was the last to be nominated among this trio, on December 11 — but he’s also the least controversial of the three. A Columbia Law grad, Hunt is a career lawyer at the Justice Department, with more than 15 years of DOJ experience under his belt. He has been described as “very much an institutionalist,” and he’s widely respected internally within the Department. There’s no reason he shouldn’t be swiftly confirmed — along with Dreiband and Clark.
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One reason for the delay is that Senate Republicans and Majority Leader Mitch McConnell remain very much focused on confirming judges, especially appellate judges. That strategy makes sense, given the lifetime tenure these judges will enjoy, ensuring that their influence will last long beyond the years of the Trump Administration. And given the refusal of Democrats to cooperate on nominations, instead requiring 30 hours of “debate” on every nominee, no matter how uncontroversial, prioritizing nominees is inevitable. (What should really happen is that Senate procedures should be reformed to limit debate on sub-Cabinet and lower-court nominees, as proposed by Senator Ron Johnson (R-WI) or Senator James Lankford (R-OK) — but I’m not optimistic.)
Although extremely important, judicial confirmations are not the only game in town. Senator McConnell and his colleagues should take a short detour into executive nominations and get Clark, Dreiband, and Hunt confirmed, so Main Justice can have a full leadership team and move forward with its crucial work.
Senate Confirms Benczkowski; It’s Time To Confirm Dreiband and Clark Too [Power Line]
A Long Game That’s Taking Too Long [Power Line]
Confirm Jeff Clark [Power Line]
Senator Schumer and I Agree: Let’s Confirm President Trump’s Nominees [National Review]
Earlier: Justice (Department) Delayed, Justice Denied: The DOJ Nominations Backlog
David 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 [email protected].
