What does Obama’s punt on Holder replacement mean?

On Tuesday, exactly three weeks before the midterm elections, the White House confirmed that President Obama would not be nominating a new attorney general until after the elections. Media reports indicate that the decision to delay was requested by Senate Democrats and was done to avoid the nomination being “caught up in election year politics.”

Sen. Chuck Grassley (Iowa), the ranking Republican (and if the Republicans take back the majority, the next chairman) of the Senate Judiciary Committee, in equating the move to the president’s delay of the threatened executive action on immigration, said that “[f]irst it was immigration, and now Senate Democrats have asked the president to delay this announcement for attorney general so they can avoid making clear to the voters of their states where they stand on what could be a controversial choice for attorney general.”

What is interesting is that the White House, by delaying the nomination, may have well injected the issue into the election year politics, precisely what they wanted to avoid. I would not be surprised to see candidates using this issue in competitive red-state races.

Delay can signal one of two directions

To those familiar with the confirmation process, this move to delay can mean one of two things: (1) that the type of nominee the president is considering appointing will likely be one that is controversial; or (2) he is waiting to see the results of the Arkansas Senate race, and perhaps allow him the option of considering Sen. Mark Pryor (D) for attorney general.

{mosads}The reason some think the White House is considering a more controversial selection is the fact that without a controversial pick there should be little, if any, political backlash in the elections over the nominee. For example, if the president selected Preet Bharara, the current U.S. attorney in Manhattan, and a former chief counsel to Sen. Chuck Schumer (D-N.Y.), there would be almost no backlash. He is viewed as a law-and-order public servant with integrity. He is familiar to most of the current members of the Senate Judiciary Committee, which will be considering the nomination. He has taken on insider trading, corporate fraud as well as terrorism. He is also not one accused of being in the vast right-wing conspiracy, as he was the singularly responsible for the Senate’s oversight investigation into the Bush administration’s U.S. attorney firing, and the one Senate aide most responsible for the ultimate unceremonious resignation of former Attorney General Alberto Gonzales.

Other noncontroversial nominees also are said to be considered, such as former Clinton-appointed U.S. attorney and current S.E.C. Chair Mary Jo White, who has also had a largely impeccable law enforcement record; and current senators from safe Democratic states Amy Klobuchar (Minn.) and Sheldon Whitehouse (R.I.), both former prosecutors. Or in the mold of what President George W. Bush did in nominating former federal judge Michael Mukasey, the president can nominate current D.C. District Court Judge Beryl Howell, who is a former federal prosecutor in New York, and a longtime trusted aide and former general counsel to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).

The White House’s continued press-trial balloons about the possibility of nominating current Labor Secretary Tom Perez may signal that he is a leading candidate. Nominating him prior to the elections sure would inject controversy in the upcoming elections, about which Senate Democrats are right to be worried, and right to not want to happen prior to the elections. His nomination to the Department of Labor was only confirmed on a party-line vote and not one that would have survived had the filibuster not been eliminated through the so-called “nuclear option.” There were questions that were raised about certain cases while he served at the Justice Department, which would all be fair game as a nominee to run the department.

Whether it is a controversial nominee or Sen. Pryor that led to the White House’s decision to delay the nomination, the few weeks after the elections will be filled with anxious jockeying. The nomination may well be delayed again if control of the Senate will not be clear until potential runoff elections in Louisiana and Georgia.

Regardless of the results of the elections, one thing seems to be clear: The White House and Senate Democrats would like to get the nominee confirmed in the lame-duck session and prior to the seating of newly elected senators in January. That, in and of itself, will be cause for some outcries and controversy, though not likely to block the nomination.

Delrahim is partner at Brownstein Hyatt Farber Schreck, LLP. He previously served as chief counsel and staff director of the Senate Judiciary Committee under Sen. Orrin Hatch (R-Utah) and as former deputy assistant attorney general at the Department of Justice.