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The New Congress and Its Impact on the Nomination and Confirmation of the Attorney General and Other Nominees

In addition to the policy agenda to be advanced by the Republican-controlled 114th Congress in 2015, the next true test of the political dynamic—and potential cooperation—in Washington will be the confirmation process for the next United States Attorney General. The follow-up test will be the treatment of judicial and other nominees.

Democrats seethed at what they perceived as Republican intransigence in confirming nominees while the Democrats held the majority.  The Republicans, in turn, seethed at the Democrats’ implementation of the so-called “nuclear option” to allow confirmation of presidential nominees (other than Supreme Court nominees) by a bare majority of votes without filibuster.

Now, many Senate Democrats fear a Republican majority will basically turn off the spigot of confirmations other than for nominations that must be addressed, such as that of the attorney general.  Nominations may prove to be area where “working together” is most likely to be demonstrated or fall apart.

Attorney General Lynch

The nomination of Brooklyn United States Attorney Loretta Lynch as Attorney General Eric Holder’s replacement puts a career prosecutor and U.S. attorney with no currently known political infirmities before the soon-to-be Republican Senate.  The fact that Attorney General Holder has indicated he will remain in office until his predecessor is confirmed by the Senate may in and of itself produce quicker action because of Republican animosity towards Holder.  Republicans, however, are insistent that Lynch’s nomination be considered in the new Congress, while some Democrats believe it ought to be considered in the lame-duck session of the current Congress.

The calculus for determining when the President’s nominee for the office of attorney general will be confirmed involves a number of substantive issues.  The president’s likely use of executive authority on immigration—which is opposed fervently by Republicans—as well as the continuing debate over keeping detainees at Guantanamo Bay in Cuba and the use of U.S. courts to try terrorism cases will necessitate decisive action by the president, his attorney general and Congress.

For these reasons, the president and Congress may be compelled to act sooner rather than later on the president’s nominee and, as a result, will provide clear evidence of the working relationship between the new Congress and the president for the next two years.

The Logjam of Judicial and Ambassadorial Nominees

With the exception of two nominees being withdrawn and two other close votes to confirm nominees, President Obama’s past cabinet nominees that have been confirmed by the Senate have enjoyed relatively wide margins of victory or have been confirmed on a voice vote.  If the Senate confirmation process for the attorney general is consumed in a political firestorm, it will be the clearest indication that the working “relationship” between Congress and the president is likely to be engulfed as well and, as a result, the gridlock in Washington will continue.

The Democratic hope for confirmation of Loretta Lynch in the lame-duck sessions seems quite unlikely given the current change-of-power scenario and the time required to process her confirmation.

Judicial nominees are the other area of deep concern for Democrats.  It has become customary to reduce and pick off some of the president’s nominees during his last year in office. However, Democrats are concerned that all (or almost all) Democratic judicial nominees and ambassadorial nominees will be frozen, not just those that create some level of discomfort among Republicans.

It is possible that current Senate Majority Leader Harry Reid (D-NV) could use the threat of a Lynch confirmation vote in the lame-duck session as a lever to extract approval of some judicial and ambassadorial nominees.  Under current rules, she could be confirmed on a majority vote and not filibustered.  But it remains to be seen whether that will be done.

The key takeaway for stakeholders is that the president’s action (or inaction) on immigration, and the treatment of attorney-general-nominee Lynch and judicial and ambassadorial nominees, will be a harbinger of the future political environment and the likelihood of congressional action on major issues facing the nation (e.g., tax reform, immigration reform, trade) over the next two years.

© 2019 McDermott Will & Emery

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About this Author

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Stephen M. Ryan is head of the Government Strategies Practice Group in the law firm of McDermott Will & Emery LLP and is based in the Washington, D.C., office.  He provides lobbying, litigation and counseling services, often for the high-technology community, and companies in highly regulated industries.  He has broad experience in addressing the combined legal, political and press related challenges stemming from congressional oversight and investigation.  Steve has been recognized byWashington D.C. Super Lawyers as being among the top five percent in political law as well as by the ...

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