More than two years into Joe Biden’s presidency, Biden has nominated 67 people to the 93 offices that compose the U.S. Attorney’s Office (USAO). After one post-confirmation withdrawal of Marisa Darden, 66 offices or 71 percent currently have nominees to the position; only 60 nominees or 64.5 percent have been fully confirmed to their office.
While the majority of USAO nominees have been confirmed, marking significant progress during Biden’s first term to date, the fact is that nearly 30 percent of these crucial positions remain without nominees even as reach the halfway point of Biden’s term (today, January 20th). These open positions are an irresponsible oversight by the President and his aides.
As we’ve noted many times before, U.S. Attorneys are critical federal actors in the on-the-ground implementation of Biden’s policy goals. Due to the extraordinary latitude that officers have in the direction of their offices, U.S. Attorneys can orient the privileges, authorities, and resources of the Department of Justice on a far more localized, regional level. This allows them to hone in on – and to pursue real consequences for – region-specific inequities that may not meet the interest of the DOJ at large. From prosecuting environmental crimes to wage theft to public corruption to civil rights violations, the U.S. Attorney’s office (USAO) can make a real difference in their local communities – when and if wielded in the true public interest. But, this is no guarantee – too often, U.S. Attorneys are more committed to the status quo and prosecution of individuals, in line with existing racist and classist biases in the US criminal legal system as a whole.
Given the variability in the impact that U.S. Attorneys can have, to reference a central ideal of the Revolving Door Project, personnel is policy, and always has been. The people that President Biden chooses and advocates for to occupy influential government positions matter, as do their records and the potential priorities that their resumes hint at. When bad actors are given control of these offices, similarly they can wield the full force of the DOJ to do real harm in their communities through mimicking fraught prosecutorial priorities that target individuals for low-level crimes rather than the systemic failings of corporate oligarchs. Unfortunately, Biden has made several bad choices in his selection of nominees for certain USAO and has been deliberately blocked in his (good) nominations of others. Thankfully, with a new Congress, he has a chance to let bad nominations die. In all arenas, Biden has the tools to do better.
Drop Bad Nominees
First, Biden shouldn’t be nominating bad nominees. Meaning, individuals with obvious conflicts of interests to those of the public should not be trusted to serve the public interest. People with extensive records in white collar defense, intensive prosecutions of low-level drug crimes, or extraordinary (and well-documented) racism aren’t and won’t be good-faith implementers of Biden’s professed ideals. When frontline communities protest nominations, Biden should listen to them. Better yet, his administration should be actively consulting the communities which these offices and officers serve, prior to committing to his nominations.
Instead of handing the full authority of the DOJ over to BigLaw sellouts and corporate hacks, Biden should instead empower respected progressive professionals to do good work in their own home towns and regions. Of course, such a move is well within Biden’s authority as President and would require little more than a simple rejection of arbitrary procedural traditions that have been manipulated and abused by bad-faith Republican senators, notably in efforts to sabotage the President’s policy implementation in their states.
Which brings us to our second set of tools:
Don’t Defer To Slimy Republican Senators
Biden should abandon blue slips, an antiquated Senate procedure invented in the 1950’s by notorious Mississippi segregationist Sen. James Eastland to force the nomination of pro-segregation judicial candidates that would hinder the actual realization of the reforms mandated by Brown v. Board of Education.
Blue slips allow senators to register their concerns about Presidential nominees in their states; they are a non-binding political tool that insist upon the deference of the President in order to effectively block nominations. While the practice of consultation in nominations is not controversial, the functional use of blue slips is. As they were created to, blue slips continue to function as a racist, asymmetrical political tool in the belt of reactionary politicians intended to deprive the federal government of good nominees and the public of crucial federal services.
As we have discussed previously, blue slips in the Biden era have been routinely wielded against qualified minority candidates by unscrupulous Republican Senate delegations looking to obstruct the work of the Biden administration at any cost. That is, Republican senators regularly use blue slips to block nominations and confirmations in their states, in ways Democratic senators do not under Republican executives. During the 117th Congress, for instance, the vast majority (35 of 39, or 89.7%) of Biden nominees went through in states with two Democratic senators, while just over half (23 of 43, 53.5%) succeeded in states with two Republican senators.
These disparities in the confirmation processes for some of the most public facing roles in the federal government is a problem. This arbitrary partisan politicking deprives much of the country – namely, Republican-dominated districts – without the benefit of on-the-ground representation from the Biden administration, and without equal and equitable implementation of Biden’s policies and potential reforms. This inequity is unacceptable – and does not have to persist.
While the blue slips process has assuredly contributed to the disproportionately high nomination rate in blue states with blue delegations, Biden simply does not have to allow Republicans (and particularly active seditionists) to have veto power over good candidates with equally good credentials.
As much as Biden has a responsibility to reject the fraught considerations of bad-faith Republican Senators through a repudiation of this ineffectual process, so too should Sen. Dick Durbin (D-IL). As the Chair of the Senate Judiciary Committee Durbin has the authority to officially discontinue the process within the committee hearings that are routinely hijacked by Durbin’s colleagues across the aisle. The fact that he hasn’t yet, even while his party’s nominees have been deprived of votes and crucial positions have been left empty for years (for the singular benefit of vacuous political grandstanding) is an utter failing of Durbin’s responsibility to his position, to Biden as party leader, and to the base which elected them both.
Going forward, Biden and Durbin should forego the use of blue slips and seek advice for candidates from folks doing actual good work in their communities – such as Missouri District 1 Rep. Cori Bush – rather than consulting folks like seditionist and Missouri Senator Josh Hawley for these positions as a matter of antiquated, racist “procedure.”
Effective Governance with a Divided Congress
With the House in utter disarray under Kevin McCarthy’s tenuous leadership, we are in for a fraught next few years. The ability of Congress to competently govern, the basic functionality of the federal government, and its ability to serve the public will increasingly come down to the functionality of executive branch offices and institutions.
This reality makes nomination fights all the more significant for the Biden administration, and provides even more motivation for them to take these fights seriously in advocating for good candidates, bypassing the antics of bad actors wherever possible.