Who’ll be the next attorney general? Washington’s favorite parlor game is filling Cabinet vacancies; I like playing as much as the next pundit. (Keep reading!) Still, the more telling question is: Why are we playing this game at all?
Why wasn’t the White House, which knew for months that Eric Holder was itching to leave, ready to roll with a successor? More important, given Holder’s foot inching toward the door, why did it not time this departure more intelligently – rather than having it arrive just before an election and the prospect of Democrats losing control of the Senate.
Once again, this being baseball playoff season, can’t anybody here play this game? After six years, apparently not.
These questions matter not because of what they tell us about the Holder situation but because of what they say about President Obama and the operation he oversees.
For a year, the president knew that Holder wanted out. But, I am told, Obama thought he could persuade the attorney general to stay. Holder is one of the few Cabinet secretaries whom the president wants to spend time with. Insularity combined with arrogance bred a belief that the brewing problem of Holder’s departure would not materialize.
But it did, and with exquisitely bad timing. The Senate has left town. A lame-duck Congress could act, but, especially if the election goes in the dismal direction it seems to be heading for Democrats, the president’s leeway is considerably constrained.
Adding to the poor timing is the poor planning. Failing to have a choice in place adds to the prospect that confirmation will have to await the next, likely more hostile Congress.
And trouble multiplies in a vacuum. Every constituency starts to angle for its preference, demographic or ideological. We need another African-American attorney general. It’s time for the first openly gay attorney general. Holder was too liberal. Holder wasn’t liberal enough on issues such as domestic surveillance and press freedom
This is the lesson of filling a Supreme Court vacancy: Don’t let it fester.
But while it festers, let’s play. This is a game best conducted by process of elimination. The nominee has to be someone who’s willing to take the job for two years, and most likely a politically unpleasant two years.
So a superstar choice such as Merrick Garland, chief judge of the federal appeals court here, who might have been persuaded to give up lifetime tenure a year or two ago, isn’t apt to do so now for such a short stint.
It has to be someone the president knows and feels comfortable with. Thus, choices such as various former and current U.S. attorneys – Preet Bharara and Loretta Lynch in New York, Jenny Durkan in Seattle, Neil MacBride in Virginia – probably don’t pass the “he’s my guy (or woman)” test.
But it should also be someone who is not so close to the president as to raise (legitimate) concerns about cronyism. A choice such as former White House counsel Kathryn Ruemmler would encounter criticism that she is too cozy with the president to be the nation’s top law enforcement officer.
This is no dis on Ruemmler, who is smart and capable. Yet, as the example of Alberto Gonzales demonstrated, having the president’s top lawyer move into the attorney general job is a bad idea. Obama may be sorely tempted – for this president in particular, there is a big premium on comfort in the top jobs. But a Ruemmler nomination would turn confirmation hearings into a quest for documents and an argument over executive privilege. She’d probably be confirmed, but this doesn’t seem a smart way to spend dwindling political capital.
Previous Senate confirmation is a plus. Future political aspirations are a minus for getting through the Senate – why would Republicans want to credential the opposition? So much for Massachusetts Gov. Deval Patrick and California Attorney General Kamala Harris.
All of which points to Solicitor General Donald Verrilli as the logical, if not inevitable, choice. Close enough to be trusted; not too close to be questioned. Independent stature – the solicitor general, like the attorney general, is at a remove from politics. He was confirmed by 72 (including Republican leader Mitch McConnell) to 16.
The next attorney general won’t be a crusader. Instead, he or she will spend time fending off congressional investigations and enduring hearings. The instinct of an embattled president is to name a loyalist. Ironically, the best protection may come from choosing a nominee with enough independence to do that job effectively.