The Next Attorney General: Replacing Eric Holder

President Barack Obama and Attorney General Eric Holder (Photo by Mark Wilson/Getty Images)

President Barack Obama and Attorney General Eric Holder (Photo by Mark Wilson/Getty Images)

Eric Holder’s announcement that he will resign as U.S. Attorney General will lead to an interesting and probably difficult confirmation battle for whoever President Obama chooses to replace Mr. Holder.

According to this morning’s Washington Post, the medium list of possible choices to be the next Attorney General includes, “U.S. Solicitor General Donald B. Verrilli Jr.; former White House counsel Kathryn Ruemmler; Tony West, the former associate attorney general who just stepped down; Loretta E. Lynch, the U.S. attorney for the Eastern District of New York; Preet Bharara, the U.S. attorney for the Southern District of New York; and Jenny Durkan, who is about to step down as the U.S. attorney for the Western District of Washington state.”

The most interesting thing about this list is that two politicians — Sheldon Whitehouse, a Democratic Senator from Rhode Island and Kamala Harris, California’s Democratic Attorney General — have dropped from it. Harris, for her part, has indicated she is not interested in the position.

The question of who President Obama will nominate is only part of the succession process. The nominee, of course, must be approved by the U.S. Senate. Senator Ted Cruz (R-TX), an influential Republican and possible 2016 presidential candidate has urged that the confirmation hearing occur after the midterm election. If the confirmation hearing occurs once the new Congress is seated, particularly if the Republicans have a majority in the Senate, the nominee will probably face a long and difficult confirmation hearing.

This raises the question of who will want this position. Being a cabinet member is, of course, an extremely powerful position and a boost to the resume of almost any public servant. Attorney general is among the most important and visible positions in the cabinet, so at first glance the incentive for taking this position is clear. However, the downsides are also significant. First, nobody wants to go through a difficult confirmation hearing. These can be time-consuming, emotionally straining and have no guarantee in ending with confirmation. Second, if the confirmation hearing indeed occurs in 2015, whoever gets confirmed will have less than two years to serve as attorney general and may have to spend much of that time wrestling with a Republican-controlled Senate seeking to investigate most of the Holder years.

This partially explains why Ms. Harris, who is believed to be interested in seeking higher elected office in California, has removed herself from contention, and why Mr. Whitehouse, who could remain in the senate for several more terms, is no longer on the short list either. For both these politicians, becoming attorney general in the waning days of a not very popular administration, and going through a nasty confirmation process to get there, is not a good career move.

U.S. Attorney for the Southern District of New York Preet Bharara (Photo by Andrew Burton/Getty Images)

U.S. Attorney for the Southern District of New York Preet Bharara (Photo by Andrew Burton/Getty Images)

Of course, it wasn’t an easy tenure for Mr. Holder, either, though he has not given any concrete reason for his resignation. He has offered a very general, and entirely plausible explanation for his decision: “It’s been a good run, but it’s time to let somebody else take a shot.”

Mr. Holder has faced more than his share of criticism during his almost six years in office. He was attacked for wanting the trial of Khalid Sheikh Mohammed to be held in Manhattan, for his role in the NSA surveillance, his progressive positions on voting rights and for politicizing the Department of Justice. Darell Issa, one of the Obama administration’s most outspoken congressional critics upon hearing of Holder’s resignation, tweeted, “Eric Holder is the most divisive U.S. Attorney General in modern history.” The accuracy of Issa’s Tweet can be debated-John Mitchell and Ed Meese weren’t exactly consensus builders. However, Holder may well have been the most divisive cabinet member in the Obama administration.

Mr. Holder was divisive because he managed to anger conservatives who believed he used his office to help cover-up the IRS scandal, to oppose voter ID laws and to expand voting rights to more Democratic constituencies, like when in February of this year he advocated to allow felons to vote. Mr. Holder drew ire from the right for these things, but was never fully embraced by progressives either — by strongly defending and supporting the NSA surveillance program, Holder earned enmity from the left as well.

Mr. Holder has said that he will remain in office until his successor is in place. Given Mr. Cruz’s comments and the sentiment in the senate, Mr. Holder could still in office well into 2015. The person who finally succeeds Holder will have a brief and not easy tenure at the Justice Department. For this reason, the candidate could well be somebody who is wrapping up a career in public service rather than looking at the next high level elected or appointed position.

Lincoln Mitchell is the national political correspondent for the Observer. Follow him on Twitter @LincolnMitchell.

The Next Attorney General: Replacing Eric Holder