Deputy Attorney General Confirmation This Year In Doubt
By Andrew Ramonas | November 26, 2021 4:40 pm

It’s looking increasingly unlikely that the Senate will act on the nomination of James Cole to be Deputy Attorney General before the 111th Congress adjourns next month.

If Cole is not confirmed as the Justice Department’s No. 2 official before Congress adjourns sine die in the next few weeks, the Senate will return the nomination to President Barack Obama.

The top DOJ managerial post has been filled on an acting basis since February, and Cole’s nomination has been pending since May. But Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, told Main Justice that the nomination still needs “a full debate.”

“I hate it that it’s been delayed,” Sessions said earlier this month. “But, at the same time, there’s some controversy about the nomination. He’s going to be the Deputy Attorney General of the United States of America.”

Republicans, emboldened by their strong showing in the mid-term congressional elections and looking toward the 2012 presidential election, have shown little urgency in acting on Obama’s nominees.

James Cole answers questions before the Senate Judiciary Committee. (photo by Channing Turner / Main Justice)

This month, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said Republicans were holding up confirmation of federal judges. Obama also hasn’t been able to fill two other top Justice Department posts, the assistant attorney general positions over the Tax Division and the Office of Legal Counsel, because of Republican Senate opposition.

Moreover, a 2002 article Cole wrote in support in of civilian trials for terrorism suspects is playing into the politics of the moment, with conservatives critical of Attorney General Eric Holder’s policy of trying terrorism suspects in federal courts. And Cole’s work as an independent monitor for insurance giant AIG has also come under scrutiny. The Federal Reserve bailed out AIG during the 2008 financial industry crisis.

Regan Lachapelle, a spokeswoman for Senate Majority Leader Harry Reid (D-Nev.), told Main Justice that Cole’s confirmation is “an important priority.” She said the Democratic Senate leadership hopes for a final vote on his nomination before Congress adjourns for the year.

But with only a few weeks remaining before senators will leave town for Christmas, time for the consideration of the nomination will be at a premium.

Obama nominated Cole on May 24, and the Senate Judiciary Committee approved him along a party-line vote in July.

The Senate can confirm nominees quickly with little or no debate. But the nominees can stall in the Senate if senators refuse to consent to time agreements for debate on nominations.

Without a time agreement, the Senate must use the time-consuming cloture process. Approval of the cloture motion, which limits debate to 30 hours, requires the support of 60 senators.

The Senate already has a busy schedule for December. The lame-duck chamber will return on Monday to resume consideration of a food safety bill. The body is also expected to consider an extension on the George W. Bush-era tax cuts and the ratification of a new nuclear arms reduction treaty with Russia during the last few weeks of this Congress.

A Democratic Senate aide said Republican and Democratic leaders are in engaged in discussions about a vote on Cole. But the adviser did not know when a vote might occur.

If the Senate adjourns without confirming Cole, Obama would have to re-nominate Cole for the Senate to consider the nomination in the 112th Congress. Nominees can be held over between sessions of each two-year Congress but not when the legislative body adjourns sine die, or permanently at the end of a two-year Congress.

Democrats are frustrated with the lack of movement on the Cole nomination. Leahy and Sen. Benjamin Cardin (D-Md.) told Main Justice that Deputy Attorney General nominees have moved through Senate quickly over the last few decades. Cole has waited longer for confirmation than any other Deputy Attorney General nominee since before the Ronald Reagan administration, National Public Radio reported.

Leahy said the delay on a full Senate vote for Cole is “unbelievably unprecedented.”

“It’s not responsible and it’s hurting law enforcement terribly,” Leahy said. “At the end of the day, it is an irresponsible way to handle it.”

Gary Grindler has served as acting Deputy Attorney General since David Ogden resigned in February. Cardin said Grindler cannot issue Foreign Intelligence Surveillence Act applications to monitor suspected terrorists or spies because he is not a presidentially appointed Deputy Attorney General.

“In other words, the Senate’s failure to confirm a Deputy Attorney General will continue to adversely affect the national security,” Cardin said in a statement to Main Justice.

But Cole’s positions on national security worry Sessions. The senator said he wants a Deputy Attorney General “who is going after the terrorists.”

Cole, a former DOJ Criminal Division official, said during his nomination hearing in June that he supports “use [of] all available means” in defense of national security. In his testimony, the nominee, a partner at the law firm of Bryan Cave LLP in D.C., pushed back against Republican criticism of his 2002 op-ed that endorsed the use of federal courts for terrorism suspects. Cole said he endorsed a mix of options for terrorism suspects, and that recent improvements in military commissions now make commissions a more viable option than in 2002.

A federal jury’s acquittal last week of Ahmed Khalfan Ghailani on all but one count in the 1998 embassy bombings in Africa fueled Republican anger over Attorney General Eric Holder’s support for using civilian courts for some terrorism cases. Potential 2012 presidential candidates Newt Gingrich and Tim Pawlenty called for his resignation over the handling of the case.

Holder’s earlier decision to try accused 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York was also criticized by conservatives and eventually derailed by bipartisan opposition to the costs and disruptions of a trial in Manhattan.

“I think this administration has put too many people in high positions in the Department of Justice who represented an anti-government view of the War on Terrorism,” Sessions told Main Justice. “They either opposed the calling of the war or they defended terrorists and asserted various and sundry defenses that many of which were rejected.”


One Comment

  1. Publius Novus says:

    There will be no further action on any nominee of this president, which he/she be one to the executive or judicial branch. The “loyal opposition” has decided that the interests of their party are more important than the interests of this country. Equally importantly, they have also concluded that a strategy of total obstruction will win elections. At least for the time being, it appears that their latter calculation is correct.

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