Things seem to be looking good for Todd Blanche’s nomination as attorney general. Problems can always arise, but as of now, the Magic 8 Ball is giving favorable answers. Public reporting on senators such as Thom Tillis and John Cornyn seem to imply that they want to get to yes, which is a good thing. This means the administration should be considering who will replace Blanche as deputy attorney general (DAG).
The calendar is tight. At this point there will likely be a Judiciary Committee hearing at the very end of the July work period, the first week in August. Nominees for that hearing have about a week to get sent to the Senate. Ideally that slate will include at least one circuit judge and perhaps some of the existing district judges, because that’s the last train out of the station before the midterms.
All told, though, it’ll be easier to get senators like Tillis and Mitch McConnell to vote in the lame duck for judicial nominees than for DOJ nominees. If I were the Trump administration, I’d want to clear the DOJ decks before the midterms. That means I’d nominate the remaining senior DOJ positions for an early August hearing: the DAG, the assistant attorney general (AAG) for antitrust, who has just been announced, and perhaps an AAG for the newly rechristened Energy and Natural Resources Division.
Who is the DAG should be a decision for the attorney general. Frankly, Republican Senators should respect this, provided the pick is within the mainstream. Distance between the attorney general and the DAG is bad for the department. Bill Barr colorfully told George H. W. Bush, upon hearing that the DAG would be chosen for him, that the attorney general’s “balls are in the DAG’s pocket” and he didn’t want his balls in the pocket of someone the president chose.
Barr’s pick there was instructive, too: George Terwilliger, at the time U.S. attorney for Vermont. Barr had spent some time as DAG and as AAG for the Office of Legal Counsel, but all told his experience was civil and constitutional. He needed a deputy who really understood criminal law. Terwilliger, a longtime AUSA in D.C. and Vermont before becoming U.S. attorney, had that knowledge.
It was similar in Barr’s second tour of duty when he picked Jeff Rosen to be the DAG. By this time, Barr had already served as attorney general, so he knew the lay of the land substantively. It had been 25 years earlier, though, so what he didn’t know was the contemporary workings of the administrative state. Rosen, a very talented lawyer from Kirkland & Ellis, was serving as deputy secretary of transportation, so he understood the Trump-era bureaucracy. Like Terwilliger, he filled a gap in Barr’s knowledge.
What does this mean for Blanche? There are many worthy candidates Blanche can choose from. In evaluating, them, though, he should keep three things in mind: trust, the Senate calendar, and his personal expertise.
As Barr’s anecdote shows, the attorney general needs to trust his DAG. He can’t worry about needing to second-guess him or his instincts; he doesn’t have time for that.
The calendar presents a potential problem for candidates with Senate confirmation because there may not be time to backfill their current positions. That may not be dispositive, but it’s a concern Blanche will need to confront. Given the uncertainty surrounding the midterm elections, Blanche should want to end the year at full fighting trim with as many Senate-confirmed component heads in place as possible. Promoting someone who’s Senate confirmed already may prevent that.
In terms of expertise, Blanche is a pro when it comes to criminal law and — after a year and a half — surely has his arms around the bureaucracy of the department. Indeed when it comes to criminal law, it’s safe to say that Blanche will be the most experienced attorney general since Loretta Lynch. If there’s a gap in his background, it’s on the civil and constitutional side. This is especially important because that’s where much of the action against the Trump administration is, thanks to judicial resistance and blue-state lawfare. This may counsel in favor of a pick who can work with Solicitor General John Sauer and Associate Attorney General Stanley Woodward to round out the expertise at the top of the department.
Regardless, the pick should be Blanche’s, and he should probably get it done quickly. Even if it may look a little presumptuous, that’s just the price he’ll need to pay to get out in front of the Senate calendar.