Well, it’s understandable that Republicans would rather have control of the Senate when it comes time to replace Eric Holder, but … wasn’t that the point of yesterday’s resignation announcement? If Barack Obama didn’t intend on replacing the Attorney General before the next session of Congress, Holder wouldn’t have done the GOP a favor by handing them an explicit reminder of what continued Democratic control of the upper chamber means, just a few weeks before the midterm elections, putting Democratic candidates even further on the defensive.
Republican lawmakers quickly vowed that whomever Obama taps would be subject to intense scrutiny following an era when the GOP was often at odds with the Justice Department.
But even if, as many predict, Republicans reclaim control of the Senate in the approaching midterm elections, they would be largely powerless to block Democrats from using their current majority to confirm an attorney general before the new Congress is gaveled into session in January.
“Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress so that we can solve the problems facing our country,” said Iowa Sen. Chuck Grassley, ranking Republican on the Senate Judiciary Committee.
Grassley, who voted to confirm Holder in 2009, lamented that his tenure “was strained by his lack of respect for Congress, the American taxpayer and the laws on the books. “
He noted, however, that Holder has committed to remaining on he job until a successor is named, allowing for the confirmation process to run its course.
Ted Cruz also demanded a delay, pointing out that a number of Democratic Senators who would vote to confirm a nominee in a lame-duck session may have already gotten voted out of office by that time. Although their terms would still continue, the process of lame-duck confirmations lack legitimacy as a result, Cruz argued:
With Nov. 4 midterm elections potentially tipping the balance in the Senate, some Republicans immediately called for a delay in the hearings and votes on the new attorney general until January, when the possibility of a GOP majority in the Senate might give Republicans almost total control of the outcome.
Sen. Ted Cruz (R-Tex.) issued a political call to arms for conservatives, saying that outgoing senators should not vote on the nominee during the post-election lame-duck session. “Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder’s successor would be an abuse of power that should not be countenanced,” Cruz said in a statement.
That’s a defensible argument, but not a winning one. Using that logic, there should be no lame-duck legislative activity at all, which would make the budget arrangement just passed by Congress rather problematic, since the funding runs out in mid-December. Given that the statutory and budgetary powers of Congress continue to be exercised legitimately in the few weeks between an election and the next session of Congress (which never really been challenged), the advice-and-consent role in nominations surely would follow as well.
Winning that argument in the sense of stopping a confirmation isn’t really Cruz’ point, though. He wants to win that argument in the midterm elections by reminding voters that their Democratic incumbents are a rubber stamp for Obama’s extreme nominations and policy agenda. Holder provided that opening with his oddly-timed retirement from Obama’s Cabinet, and one can bet that Republicans in every Senate race will hammer that theme between now and the first week of November. It will also open the topic of Supreme Court nominations in these races, with Republicans emphasizing how important it will be to have a GOP Senate to check Obama’s impulses.
The only way to avoid that argument is to nominate a real middle-of-the-road technocrat that can pass muster with Republicans as well as Democrats, or pick someone from the Senate like Claire McCaskill, Richard Blumenthal, or someone similar — who will get an easy ride on confirmation while not ceding Senate control by subtraction. Cruz and Grassley’s demands are a way to escalate the pressure on Obama to do so in order to neutralize the issue in the midterms, which is another method of shaping the political battlefield. There may be some Democratic candidates who hope Obama responds to that pressure, too.