Updated: This story was updated with a statement from Attorney General Eric Holder.
Kathryn Keneally was confirmed as Assistant Attorney General to head the Tax Division and Michael Horowitz as the Department of Justice’s Inspector General late Thursday, ending months of delay in the Senate.
Keneally and Horowitz were confirmed by voice vote as the senators acted on numerous nominations, under a deal cut before Christmas to break a logjam on nominees. Their fates had been in limbo for months, in part because of Republican anger at the Justice Department over a gun-tracking attempt that backfired badly and then over a broader constitutional tug-of-war between the Senate and the White House.
The failed gun-tracking investigation was Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed straw buyers to acquire hundreds of guns so they could be tracked across the U.S.-Mexican border and lead law enforcement officers to Mexican gangsters.
The operation went off the rails, as the ATF lost tracks of many weapons. Worst of all, two of the weapons were found at the scene of an Arizona shoot-out in December 2010 in which an American Border Patrol agent was killed.
Sen. Charles E. Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, has been one of the angriest critics of Fast and Furious. As Main Justice noted in December, Grassley delayed a full Senate vote on Keneally — not because of her qualifications, which he said were impressive, but because he was convinced that Assistant Attorney General Lanny A. Breuer, head of the DOJ’s Criminal Division, had been misleading in his statements about Fast and Furious.
Horowitz, whose nomination was announced last July (see Main Justice’s account), has extensive experience as a DOJ official and prosecutor and as a white-collar criminal defense attorney. He, too, encountered bumps in the road toward confirmation, in part because of Fast and Furious.
As Main Justice noted in November, even as the Judiciary Committee unanimously endorsed Horowitz’s nomination to be IG, Grassley wondered aloud whether the nominee’s long relationship with Breuer would interfere with the investigation of Fast and Furious. At the time, Grassley made a point of saying he was not satisfied with some of Horowitz’s responses to questions and would follow up before letting the nomination go to the Senate floor.
“I’m confident Kathryn and Michael will provide strong leadership to the department, and will play an instrumental role in fulfilling our critical mission of protecting the American people,” Attorney General Eric Holder said in a statement. “Kathryn will be integral to our efforts to enforce our nation’s tax laws fully and fairly, and Michael will promote integrity, financial austerity and effectiveness in Department of Justice operations. They are both welcome additions to our senior leadership team.”
Grassley has also expressed anger over appointments made by President Barack Obama while the Senate was in recess (see Main Justice’s report in January). Recess appointments, which a president is empowered to make under the Constitution, expire at the end of the next session of Congress, unless they are approved by the Senate.
The most recent dispute over recess appointments involved the definition of the very word “recess,” as well as the larger issue of the balance of power between the Legislative and Executive branches.
Grassley made clear in a floor speech in February that he was angry at the White House over what he saw as bad faith and departure from past practice on recess appointments, and that some nominations were caught in the cross-fire.
“We could have confirmed more nominees, had the President indicated that he would respect the practice and precedent on recess appointments,” Grassley said. “He would not give the Senate that assurance, so a number of nominations could not be confirmed and remain on the Executive Calendar. As it turned out, the President went on to violate the practice and precedent.”
“This is more than just a policy issue or disagreement on a particular nominee,” Grassley went on to say. ” The underlying concern is a power-grab by this President. I would think that all senators would rise to defend the prerogatives of the Senate and the constitutional principles which have been violated by the President.”