Empty Chairs

What If the United States Had No Attorney General?

Senate Democrats face a choice: pushing through AG nominee Loretta Lynch, or filling 231 executive-branch vacancies. They won’t get both.

Republicans say it’s just too hard to confirm a new attorney general in a lame duck session of Congress, so they’d rather hold off until next year, when the new Congress is sworn in. Democrats have to decide how much more they would poison the water if they use their majority in the lame duck to push through President Obama’s nominee, U.S. Attorney Loretta Lynch. But if they wait until January when the GOP is in the majority and in a position to block Lynch, will she ever even be confirmed?

“All I can say is the words you can get from almost anywhere – Your guess is as good as mine,” says Russell Wheeler, an expert on the federal judiciary with the Brookings Institution. He points out that the incoming chairman of the Senate Judiciary Committee, Iowa’s Charles Grassley, greeted Lynch’s nomination with the observation, “U.S. Attorneys are rarely elevated directly to this position,” a warning shot about what lies ahead.

“Is becoming attorney general after being a Wall Street lawyer, as in the case of John Mitchell (Nixon AG), better than being head of one of the busiest U.S. attorney offices in the country?” asks Wheeler. Lynch heads the Eastern District of New York, which includes Brooklyn, Queens, Staten Island, and Long Island, and has prosecuted everything from terrorists to drug lords and Mafia kingpins.

The debate really isn’t about her credentials, or whether it’s too big a leap to move from U.S. Attorney to Attorney General. It’s about whether the Democrats want to use their waning power on Obama’s behalf for a single nominee, or whether they will attempt to work out a deal with incoming Majority Leader Mitch McConnell to wave through on voice vote more than a hundred uncontroversial nominees for executive posts, some who’ve been waiting more than a year for confirmations.

There are 231 stalled nominations, including unfilled posts at State, Defense, and Homeland Security, and 49 ambassadors waiting to be green-lighted to their new country assignments. Democrat Pat Leahy, chair of Judiciary until Grassley assumes the gavel in January, says 95 percent of the names that are pending are non-controversial, and clearing them in a group is how it was customarily done under both Republican and Democratic presidents.

Any deal of this nature would sideline Lynch and Surgeon General nominee Vivek Murthy, who is opposed by the gun lobby and its Senate allies for once saying gun violence is a public health issue. Outside progressive groups and some Democratic senators want the Democrats to press their majority to confirm every last nominee, and while that sounds appealing after the drubbing Democrats took in the election, it could backfire.

Even though Lynch has been confirmed twice by the Senate, and heavily vetted, once after President Clinton nominated her for U.S. Attorney, and again after President Obama re-appointed her, the Republicans have a number of tools available to them to stall the process and gum things up for everyone. “You’ve got some members wanting to go all day, and all night (to confirm everyone), but if the Democrats push that, it could take up to three days to pass every one of these guys if Republicans stick to their guns,” says Jim Manley, former longtime spokesman for Democratic leader Harry Reid.

The math is against getting hearings up and running in the five-week long lame duck session, which has to contend with other priorities, like getting a new spending bill to keep the government open, and a new defense authorization, which alone normally takes a week. Even if they managed two or three days of hearings for Lynch, the calendar automatically goes into the following week. “And any one senator can push it off for another week,” says Manley. “Then you’re into mid-December, and the mood is nobody wants to stay until the holidays.”

The two leaders – McConnell and Reid – are taking the temperature of their caucus and still feeling around for where they want to go and how to get there, says Manley. Their relationship is toxic like everything else in Washington, but as longtime insiders, each first elected in the 1980’s, they are skilled partisan players. For Reid, the imperative has to be confirming as many of the 34 district court nominees that are in the pipeline as possible. Sixteen have cleared the Judiciary Committee, 13 with unanimous support from members of both parties.

For McConnell, it’s figuring out how much leeway he has with a newly emboldened group of senators, and maybe, just maybe, factoring in some of the institutional memory he has from an earlier era. When his colleagues say it’s too hard to confirm an attorney general in a lame duck, he might remind them that a GOP-controlled lame duck in 2004 confirmed Robert Gates as Defense Secretary in the aftermath of President Bush’s post-election firing of Donald Rumsfeld.

In the ’92 lame duck, the Senate Finance Committee voted unanimously to clear Clinton’s nominee for Treasury Secretary, Texas Senator Lloyd Bentsen, before even asking him a single question. “That was senatorial courtesy, and as Senator Hagel found out, it’s in precious short supply these days,” says Manley. (Hagel was raked over the coals by some fellow Republicans before ultimately being confirmed as Obama’s current Defense Secretary.) Dipping back further in history, in 1980, after President Carter lost the election, an up-and-coming lawyer named Stephen Breyer was confirmed in the lame duck session for the Court of Appeals, a well-known stepping stone to the Supreme Court.

History is full of lessons, but it’s not clear that anyone today is heeding them. The internecine warfare within and between the two parties is not just about what happens over the next several weeks in the lame duck; it’s about the next two years and whether Obama can expect to get any more key posts filled. “Bush II’s and Clinton’s and even Reagan’s judges were confirmed in their last two years, and in each case, the Senate was controlled by a different party,” says Brookings’s Wheeler. “There is no precedent for the process just shutting down. But whether those precedents have much weight anymore, or whether it makes any difference anymore what happened eight, 10, 20 years ago, we don’t know. I guess we’ll see.”