With Eric Holder’s decision to resign as Attorney General, the Obama administration faces the task of getting a new Justice Department chief approved in what could be a closely divided Senate.
Holder announced his intended resignation on Thursday and he will remain in office until a successor is named and then confirmed by the Senate.
With Congress mostly out of session until after the mid-term elections, the big question becomes what kind of Senate will vote on Holder’s replacement: one controlled by Democrats under the current filibuster rules, or one controlled by Republicans in the New Year?
According to the website Real Clear Politics, the Senate race remains to close too call, based on current polling data.
Under the Constitution’s Article II, Section 2, the President offers executive office nominees such as the Attorney General to the Senate for confirmation under the Senate’s “Advice and Consent” powers.
One unlikely scenario is that the President would seek a confirmation hearing immediately. Given the short time frame and the timing of the November election, a public process that gives the President’s opponents to chance to speak about Holder would prove very problematic.
A second scenario is a confirmation process would be during the Senate’s lame duck session between November 2014 and January 2015. Since Senate Majority Leader Harry Reid altered the chamber’s filibuster rules in late 2013, the Republicans can’t use the filibuster to block an Attorney General nominee during that time period.
Under the change made by Reid, the Senate can end debate over executive and judicial branch nominees with a simple majority rather than a supermajority of 60 votes. (The filibuster change doesn’t apply to Supreme Court nominations or legislation, and the rule change ends in the next Senate session in January 2015.)
If the GOP gains control of the Senate in the mid-term elections, the public spectacle of a confirmation hearing held by an outgoing Democrat-controlled Senate would bring added drama to the situation. If the Democrats control the Senate after the November 2014 elections, the process could carry into early 2015.
The third scenario is that President Obama and the Democrats pursue the nomination and confirmation process over time, and the nominee goes through the hearing process in the Senate after the new Congress convenes in early January 2015. Such a candidate would need to be a compromise candidate, if the Republicans control the Senate, or someone who doesn’t necessarily appeal to the GOP, if the Democrats retain Senate control.
Holder was sworn in as the 82nd Attorney General in February 2009 after serving as President Bill Clinton’s deputy attorney general, the first African-American to serve in that position. He was approved by a 75-21 vote in the Senate, and his nomination and confirmation process lasted for about two months.
One rumored replacement is Solicitor General Donald Verrilli, who was linked to the job by NPR. Verrilli has represented the Justice Department in many high-profile Supreme Court cases in recent years.
Other rumored replacements include former White House counsel Kathryn Ruemmler and Manhattan U.S. Attorney Preet Bharara, according to a Wall Street Journal report.
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