http://dyn.politico.com/printstory.cfm?uuid=855147F0-1352-4D7A-971F-B9C8C69373AA White House vexed on how to replace Holder
By: Edward-Isaac Dovere and Josh Gerstein
October 9, 2014 05:00 PM EDT
The White House is seriously considering waiting until after Election Day to announce a replacement for Attorney General Eric Holder in order to avoid creating a new political problem for vulnerable Senate Democrats.
But that may make an already difficult job of getting someone confirmed by the end of the year more challenging, creating a tense, time-compressed showdown with Republicans during the lame duck or waiting until the Democratic majority in the Senate has thinned, if not been lost.
White House aides say they have been busy with other pressing matters, including the ISIL operation, the Ebola crisis and even the midterm campaign schedule. No decision has been made on who the nominee to head the Justice Department will be or when he or she will be announced, aides insist.
“The process of selecting a candidate is ongoing,” said a person familiar with White House thinking.
The White House has had plenty of time to think about it. Over a month ago, President Barack Obama was informed by Holder of his final decision to leave, and he was long expected to depart by the end of the year. And most of the internal speculation has been focused on an effective short list of three — former White House counsel Kathy Ruemmler, Labor Secretary Tom Perez and Solicitor General Don Verrilli — for over a week.
“They’re just not going to do this as quickly as people want,” one former Justice Department official said. “They’ve known this was coming for over a year.”
”Everything I’m hearing is this is going to be a post-election nomination,” said another ex-official familiar with all of the leading contenders.
The apparent lack of urgency on the White House’s part has baffled some Democrats. Part of the reason for that delay may have come into focus Wednesday night, when The Washington Post disclosed new details about Ruemmler’s handling of the alleged involvement of a well-connected White House advance volunteer in a flap over prostitutes Secret Service agents and others patronized on a 2012 Obama trip to Colombia.
Republicans are already asking questions about why Ruemmler didn’t conduct a more thorough investigation of whether the advance person was telling the truth when he denied checking a prostitute into his room on the night before Obama’s arrival.
“A weekend investigation with a predetermined outcome doesn’t meet the smell test,” Sen. Chuck Grassley (R-Iowa) said in a statement Thursday. “I had asked White House Counsel Kathryn Ruemmler to explain how she came to a definite conclusion so fast. It’s now clear why the White House wouldn’t be transparent and it took the press to uncover the truth.”
Current and former administration officials tell POLITICO they believe such questions don’t doom Ruemmler’s chances, but it’s the kind of controversy the president would surely fuel if he announced a nomination of his former lawyer in advance of the Nov. 4 elections.
White House spokesman Eric Schultz declined Thursday to discuss how the Colombia prostitution flap might impact the possibility of a Ruemmler nomination. “I’m not going to speculate about any potential candidate,” he said.
However, Schultz said the White House was confident Ruemmler acted appropriately. “On the matter of this White House review, we stand by it. … We thought it was conducted by White House counsel, Kathy, in a careful, thorough way. Anyone who knows Kathy knows that she is a former prosecutor, a renowned attorney who is respected by members of both sides of the aisle.”
Any nominee named before the midterms would immediately become a topic of conversation on the trail, forcing endangered incumbents to get caught either agreeing with the president’s choice or distancing themselves in a way that could essentially vote down the choice before it ever makes it to the floor.
“The one thing they don’t want to do is put someone forward next week and have it become a November issue, a rallying cry for Republicans to stop the next Eric Holder,” said Democratic consultant Joe Trippi.
But time is running short for Obama to act if he wants a nominee confirmed this year.
Even accelerated, the confirmation process typically requires weeks of ramp-up for internal vetting and preparations by the Senate Judiciary Committee. That window begins to get tight by next week, well ahead of Nov. 4. And if the White House and Democrats are waiting for the majority to be settled, they’ll also have to game out the Louisiana and Georgia Senate races — both of which have the potential to decide the majority and are expected to go into runoffs. Georgia’s would be on Jan. 6, three days after the new Congress is sworn in.
By then, Obama could be stuck with having to settle for either a nominee that energized Republicans would be willing to accept, or with an attorney general serving in an acting capacity for the remainder of his two years in office. Holder has said he’ll stay around until a successor is confirmed, but that was not expected to be a very long window.
“If the Republicans have a clear majority, I don’t see how it makes sense to wait — even if you can’t get it done in the lame duck, it’s better to do it in the lame duck,” Trippi said.
Democratic aides say that without Republican cooperation, the confirmation process would likely take at least seven weeks. That allows about a month to prepare for a Senate Judiciary Committee hearing, including by filing answers to an official questionnaire. After the hearing, there’s typically a one-week period for senators to send a nominee written questions and another week for the nominee to respond. Any senator on the panel can also request a committee vote be put off for a week.
If the president doesn’t act until after the election, that would leave Senate Majority Leader Harry Reid with little room for error in getting the nomination to the floor before Christmas.
Democrats could try to shorten the process, but doing so without GOP consent could cause even more friction — inducing possible reciprocal moves by Republicans next year if they take control of the Senate. Many in the GOP are, unsurprisingly, urging Obama not to try to press any nominations during the lame duck.
A spokeswoman for Judiciary Committee Chairman Patrick Leahy (D-Vt.) declined to comment on his preference regarding timing. However, he signaled last week that he’d like to see a nomination soon.
“I’m encouraging the president to go sooner because it’s a case where Attorney General Holder wants to leave, he’s earned the right to,” Leahy told Vermont Public Radio.
While some Hill Democrats are jittery about Obama putting off an AG announcement, Leahy noted that Cabinet officials have sometimes been pushed through in the lame duck, even amid a change in control of the Senate. In 2006, President George W. Bush announced Robert Gates’ nomination as defense secretary the day after an election in which the Democrats took power. Gates was confirmed less than a month later, 95-2.
In 2001, John Ashcroft was confirmed as attorney general a little over five weeks following a December announcement by President-elect George W. Bush. Confirmation of Alberto Gonzales four years later took nearly three months.
However, in the wake of Reid’s decision to deploy the so-called nuclear option last year and strip Republicans of their ability to filibuster nominees for executive branch posts and most judgeships, Republicans have been even more adamant about insisting on their remaining prerogatives to delay.
In addition, trying to shorten any of the customary timelines could ignite a backlash from GOP senators, who might try to block other nominations and legislation that the White House or Democrats want to move in the final months of the year.
“That’s very risky,” one former Senate staffer said of the option to push a nominee through right after the election. “You’re going to need buy-in and complete support from Leahy and Reid to make this a priority over everything else in the lame duck.”
The hurdles appear likely to affect some potential nominees more than others. Verrilli and Perez have been confirmed by the Senate before, so the paperwork and vetting might take less time than for Ruemmler, whose government jobs did not require Senate confirmation.
Another factor that could be slowing down the White House’s decision making: the process of replacing Holder has become enmeshed with the consideration of replacements for his deputy, Jim Cole. While there’s been no formal announcement, Cole is expected to leave the department in the coming months, a person familiar with the situation said.
As a result, as the White House weighs the pros and cons of the potential attorney general nominees in terms of experience, diversity and other factors, the president’s aides are also mulling over how a new No. 2 at the Justice Department would complement the new AG. That’s added another layer of complexity to the discussions, the source said.
