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The politics of replacing Eric Holder: Timing is everything

Confirming an attorney general is already a contentious process, and GOP obstruction isn’t anything new. So what makes this case worse? One word: Midterms.

The battle over replacing Attorney General Eric Holder is well on its way to becoming an all-out political war.

It has been just a few days since Holder announced plans to resign. And although President Obama has yet to reveal who he wants to be the country’s next top lawyer, Republicans are already vowing obstruction.

Confirming an attorney general is already a contentious process, and GOP obstruction isn’t anything new. So what makes this case worse? One word: Midterms.

Several Republicans say they want to delay the confirmation process until after the November elections, and after the 114th Congressional swearing in ceremony in January. That’s because the GOP has a very real chance of winning a Senate majority – and thus would have a bigger say in who gets confirmed. Democrats, on the other hand, are signaling they want the process to go as fast as possible, hoping to avoid GOP-run hearings.

Texas Republican Sen. Ted Cruz—who has previously called for impeaching Holder—said in a recent statement that “the Senate should wait until the new Congress is sworn in before confirming the next attorney general.” He added, “Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder’s successor would be an abuse of power that should not be countenanced.”

Similarly, Sen. Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, said, “Rather than rush a nominee through the Senate in a lame duck session, I hope the president will now take his time...”

Meanwhile, Democrats want to move swiftly. Senate Judiciary Chairman Pat Leahy of Vermont said on msnbc that “we should have confirmation hearings as quickly as possible in the Senate.”  White House press secretary Josh Earnest also suggested the process would be quick, pointing to the Senate confirmation of Defense Secretary Robert Gates in a lame duck session—the weeks between the midterm elections and when new members of Congress are sworn in-- back in 2006.

“There is a precedent for presidents making important cabinet nominations and counting on Congress to confirm them promptly, even in the context of a lame-duck session,” Earnest said Friday. Senate Democrats have already sped up the confirmation of some nominees, pushing through a rule change – the  so-called “nuclear option” this Congressional session -- by allowing  nominees to advance with a simple majority of its members.

Several names have been floated to replace Holder, including Massachusetts Gov. Deval Patrick (although the Democrat says he’s not interested), Solicitor General Donald Verrilli Jr., former White House Counsel Kathryn Ruemmler, California Attorney General Kamala Harris, U.S. Attorney Preet Bharara, and Deputy Attorney General James Cole.

Jamie Chandler, a political scientist at George Washington University’s School of Political Management, said Obama’s actions in combating the terrorist group known as ISIS could give him credibility to secure a new attorney general quickly. “If he can leverage that, it may make it easier for him to get a confirmation in a lame duck session. It may put pressure on Congress to move quickly. But the GOP will try to delay it as much as possible,” he said.

Holder has said he will wait to officially leave the post he has had for six years until the Senate confirms a new attorney general. That, of course, means that until the GOP confirms someone, they’ll be stuck with Holder – whom conservatives have long loathed.

As NBC’s First Read pointed out, there’s another Democratic line of thought to wait until the new Congress is sworn in and “dare a GOP-controlled Senate to blow up an attorney general nomination, especially during the time the U.S. is waging a military campaign in Iraq and Syria.”

Democratic Sen. Chuck Schumer of New York told The New York Times, “What I think the president ought to do is make this the first test of whether the new Republicans are going to continue to obstruct.”

Either way, Obama’s pick – both whom it is and when it happens -- will reveal a lot about how he hopes to handle his second term. Will he choose a more liberal nominee and try to ram through the confirmation process before the new Congress is sworn in? Or will he try to find a compromise candidate and avoid a political firestorm? An aggressive nomination would signal that Obama, six years into his presidency, isn't done fighting yet. A more conciliatory approach would signal that Obama's lame-duck years may already be upon us.

“He’s likely to go with a low-risk nominee who has had low visibility in the Justice Department, and that will show he’s predicting Republicans could be more powerful in the Congress over the next two years,” Chandler said.

George Washington University Law Professor Stephen Salzburg said Obama’s pick will demonstrate if “he wants Holder’s agenda to be fulfilled or whether he wants to see the department take on some new issues.”

“I would be surprised if he didn’t appoint someone strong on civil rights, who wants to enforce voting rights act.... I think he’s going to want somebody who is speaks for immigration,” Salzberg said.