President Obama has a pretty obvious deadline for nominating a successor to departing Attorney General Eric Holder. If Democrats lose control of the Senate in November, they’ll still run things until newly-elected members arrive in January. So just to be safe, if the president wants guaranteed confirmation of a new attorney general, he’ll need to pick one soon. That way, even if Republicans win the Senate, and even if Obama’s choice is unpopular with the GOP, lame-duck Democrats will still be able to steamroll the opposition and confirm a new Attorney General.
But it could be very, very ugly.
The White House claims there is ample precedent for a lame-duck nomination. In fact, it’s more complicated than that.
There hasn’t been an attorney general nominated and confirmed in a lame-duck session since before the Civil War. So there’s not much in the way of direct precedent, at least in the last 150 years.
Instead, the White House points to the case of Robert Gates, nominated by President George W. Bush to be Secretary of Defense in November 2006 and confirmed during that year’s lame-duck session. Control of the Senate (and the House) changed hands in the 2006 mid-terms, the White House notes, and lame-duck Republicans supported Gates, who was confirmed on December 6, 2006.
“So there is a precedent for presidents making important cabinet nominations and counting on Congress to confirm them promptly, even in the contest of a lame-duck session, if necessary,” White House spokesman Josh Earnest argued Friday.
But there’s more to the story. First, Bush — after stubbornly clinging to the controversial Donald Rumsfeld —nominated Gates after Republicans lost the elections. Bush’s move was a recognition that the Democrats’ victory had changed the political equation in Washington.
Second, Gates was a consensus choice — a concession by Bush that the new Defense Secretary had to have support from both parties. Gates was confirmed 95 to 2.
If Obama follows the Bush-Gates precedent, he will wait until after the elections, and, if Democrats lose control of the Senate, choose a new Attorney General who could win overwhelming Republican support. That would probably quiet Republican criticism on this matter.
But does anyone think Barack Obama will actually do that?
Instead, there are reports the president is considering nominating Thomas Perez, who served a very controversial tenure as head of the Justice Department’s Civil Rights division before becoming Labor Secretary in 2013.
Perez had a reputation for zealotry at the Justice Department. He turned anti-discrimination suits into payoffs for favored civil-rights groups. He meddled in legal cases for the purpose of protecting his treasured and controversial “disparate impact” theory of discrimination from being tested in court. He even investigated whether Amazon Kindle e-readers violated the Americans With Disabilities Act because they were not, in 2010, “fully accessible” to the blind.
There’s no doubt Perez alienated Republicans during his time at the Justice Department. In 2009, when he was confirmed 72-22 for the Civil Rights post, 17 Republicans voted for him. In 2013, when he left Justice to head the Labor Department, his confirmation vote was 54-46 — a strict party-line affair, with zero Republicans supporting him.
If Obama were to nominate Perez to be Attorney General, it would be the opposite of the Gates nomination: a divisive choice sure to result in a party-line vote.
A Perez nomination would be the perfect illustration of why Senate Majority Leader Harry Reid broke Senate rules to kill the filibuster for the president’s nominations. With 55 votes in the Senate, even if some of them were lame ducks, Democrats could unilaterally confirm a Perez nomination.
“There’s really no question that the Democrats could get a nominee through in a lame duck [session],” says one senior GOP Senate aide. “There’s not a whole lot we can do about it, unless the president picks somebody so egregious that some Democrats vote against the nominee.”
Would Perez be such an egregious nominee? That’s not clear. It would take a lot to turn Democrats against the president’s choice — although it happened once this year, when the Senate rejected the nomination of Debo Adegbile to succeed Perez as head of the Civil Rights Division.
The bottom line is that, no matter what the voters say in November, Obama will likely be able to muscle his choice through the Senate. But if the nominee is Perez, or someone as divisive, it could be messy. And it won’t be anything like the consensus Gates confirmation the White House would have you believe.
