海角大神

President Obama hasn鈥檛 yet named anyone to replace Attorney General Eric Holder, who announced his widely anticipated resignation yesterday, but the political controversy over that person and, specifically, the timing of when the nomination will be considered by the Senate is聽already聽starting:

As I noted yesterday, Holder鈥檚 resignation at this late date places the administration in something of a quandray. If Republicans gain control of the Senate in November, then the odds of getting a nominee confirmed will decrease significantly. At the very least, the president would likely have to choose someone who could garner enough Republicans to get a majority, and while that may end up only being a matter of getting one or two senators, it would still pose political problems for the administration. Even if a nominee is confirmed in a Republican Senate, which I expect one ultimately would, the confirmation process would likely be brutal. Senator Charles Grassley (R) of Iowa, who would chair the Judiciary Committee in a Republican Senate, would likely do his best to keep the confirmation hearings as reasonable as possible but they would inevitably become a stage for more conservative members of the GOP caucus to score points against the administration. In the end, the president would likely get a new attorney general, but it would most assuredly not be someone like the type of nominee he could get confirmed in a Senate controlled by Democrats.

It鈥檚 because of the risk that the GOP might gain control of the Senate that most analysts are expecting that the White House and Senate Democrats will attempt bring the nomination before the Senate during the upcoming post-election lame-duck session. It won鈥檛 be easy. Right now, the Senate is expected to return on Nov. 12 and would likely remain in session until some time before Christmas. In between, there will be a week long break for Thanksgiving, though, so at most we鈥檙e talking about maybe four weeks in which the Senate will actually be in session. That won鈥檛 be a lot of time to get a candidate vetted, conduct hearings, hold a vote in the Judiciary Committee, and send the nomination to the floor, but it could be done if the Democrats want to get it done. Thanks to last year鈥檚 changes to the filibuster rules, there will be little that Senate Republicans as a group or individual Senate Republicans could do to stop the nomination, although they could try to to delay it or even run out the clock on the Senate鈥檚 session through procedural motions and the use of holds, which were not affected by the changes to the filibuster rules. That鈥檚 one reason why the president might select someone like Solicitor General Donald Verilli, who has already been through the Senate confirmation process, twice in his case. In any case, there are obvious incentives for the administration to try to push the nomination through the Senate before the end of this year, and that鈥檚 what I expect they鈥檒l do.

I鈥檓 somewhat sympathetic to the arguments that Republicans are making here. Traditionally, at least, lame-duck sessions are intended for Congress to finish up business that could not get done prior to the election. Typically this involves budget matters, and that will be one of the matters that Congress will need to take up when it returns. The idea of members of the Senate who are leaving office, or who have just been voted out of office, voting on consequential matters like the confirmation of presidential appointees or a vote to authorize future military action against the Islamic State, on the other hand, raises serious issues that shouldn鈥檛 be dismissed lightly. Just a week before Congress returns, after all, the people will have spoken and that will likely include voting out of office several incumbents in both the House and the Senate; the idea that these legislators would then have a vote on controversial and important issues is somewhat discomforting. Yes, it鈥檚 their job, but they will have just been effectively fired from their job by the voters, and it seems somewhat wrong for them to be voting as is nothing has happened, especially when the election has resulted in the party switch for their seat. The argument is the same for legislators who have announced that they are retiring when the current session of Congress ends. For better or worse, though, it鈥檚 become common practice for both parties to use these lame-duck sessions to push through things that couldn鈥檛 get passed prior to an election. During President Obama鈥檚 tenure, for example, we have seen budget agreements, extensions of the Bush Tax cuts, and the repeal of Don鈥檛 Ask, Don鈥檛 Tell all passed by a lame-duck Congress.

This issue has come up before, and聽there was even a聽West Wing聽episode about it聽that focused on a defeated senator who decided he could not in good conscience go against the will of the voters that had just elected his opponent, despite the fact that it would hurt the administration and his party.聽Four years ago,聽several Republican senators implored Harry Reid to delay consideration of the new START Treaty聽until the new Congress convened in January 2011. Democrats would still control the Senate at that time, but their majority would be a lot slimmer and Republicans would likely have had a better opportunity to influence the debate. Ultimately, Reid went forward with the vote and聽the treaty was ratified by a comfortable margin. At the time, though, the issue raised some serious concerns about the role of lame-duck congressional sessions, and not just from people on the right.聽Yale Law Professor Bruce Ackerman聽noted that there were some serious constitutional issues raised when lame-duck sessions include the consideration of controversial legislation, especially if that legislation was part of the election. At the time, I noted that聽the entire process seemed anti-democratic and rife with possibilities for abuse.聽These concerns are all well founded, but given the fact that Congress has gotten into the habit of delaying the work it needs to get done until after elections to the point where it is starting to become tradition, it鈥檚 unlikely that we鈥檙e going to see an end to these kinds of tactics in the near future.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.