The disagreement on the Senate floor last week was ostensibly over timing.
While congressional leaders negotiated behind closed doors over proposed loans to Detroit automakers, several Republicans took the floor Wednesday and Thursday to discuss Covington & Burling's Eric Holder Jr. They called for Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., to delay the Jan. 8 confirmation hearing for Holder, who of late has been dogged by his involvement in pardoning fugitive financier Marc Rich in the waning hours of the Clinton administration.
But the comments from Republicans went further. Sen. Jeff Sessions of Alabama questioned Holder's fitness to be attorney general. Sen. Charles Grassley of Iowa said he wanted to delve into Holder's career in private practice. Sen. Tom Coburn of Oklahoma threatened to prevent a vote.
Republicans have also asked the Justice Department to hand over reams of documents from Holder's time as U.S. Attorney and deputy attorney general, touching on subjects as seemingly arcane as his involvement in the Clinton administration's decision to allow an American aerospace company to export a communications satellite to the Chinese.
In a clear sign of the times, Sen. Arlen Specter, R-Pa. the Judiciary Committee's ranking member, suggested that the committee approach Holder's nomination as it approached those of John Roberts Jr. and Samuel Alito for the Supreme Court.
"When we had hearings involving Chief Justice Roberts and Associate Justice Alito, consideration was made of the minority point of view, and extensive discussions were had, and there was an accommodation and agreement reached as to when the hearing was to be held," Specter said. "So we are looking at a serious matter, and we have to do it right. It is going to take some time."
Democrats respond that they're allowing 39 days between Holder's public introduction and his hearing, greater than the average of 29 days for attorney general nominees over the last three decades.
No one has suggested that the Senate is likely to vote against Holder's nomination -- far from it -- but there are signs that Republicans have fastened to Holder as their best chance to politically weaken and extract concessions from a future member of President-elect Barack Obama's Cabinet.
"Senators seem to demand that there always be one" nominee who has a difficult confirmation process, says Stephen Hess, author of "What Do We Do Now? A Workbook for the President-Elect" and a senior fellow emeritus at the Brookings Institution. And, Hess says, "Up to this point, there's really no flash point except for Holder."
Conservative and liberal advocates are readying for a fight. Karl Rove has called Holder Obama's "one controversial nominee" and, last week, Fox News host Bill O'Reilly singled out Holder's nomination for scorn, saying "Nobody can figure that out." Holder is gathering advisers, including Steptoe & Johnson's Reid Weingarten.
"It's not going to interfere with the nomination at all," another lawyer close to Holder says. "It's their opportunity to score political points, and Eric happens to be the guy who's in the way."
In a three-page letter to Attorney General Michael Mukasey last week, Republican committee members requested an expansive list of materials from Holder's time as U.S. Attorney and deputy attorney general. A similar letter was sent to the Clinton Presidential Library and Museum.
The Republicans are searching for Holder's fingerprints on a variety of controversial policies and scandals in the 1990s, including President Bill Clinton's impeachment proceedings; the Justice Department's investigation into the siege in Waco, Texas; and the Miami raid involving Elian Gonzalez. They're also exploring Holder's involvement in Justice Department investigations into Clinton-era fundraising and the administration's decision to allow Loral Space to export a communications satellite to China to be launched on a Chinese-built rocket.
The letter also requests materials related to a memorandum Holder drafted dealing with attorney-client privilege waivers in corporate investigations, a hot-button issue that was revisited this year by Deputy Attorney General Mark Filip. And the letter asks for materials that would highlight Holder's positions on gun control, the death penalty, and Miranda warnings -- issues certain to rally the conservative base.
But the letter is largely devoted to the issue of presidential pardons, which has trailed Holder since his name began circulating as Obama's frontrunner for attorney general. The Republicans, as expected, are plumbing Holder's involvement in the pardons of fugitive commodities traders Marc Rich and Pincus Green and 16 members of the Puerto Rican separatist group FALN, among others.
The Justice Department, in the midst of the first post-9/11 transition, would not say whether it would be able to accommodate the Republicans' record requests in time for Holder's confirmation hearings. "We will review the letter," department spokesman Peter Carr says.
Democrats' defense of Holder so far has focused on the Rich pardon, which they say Clinton would have issued regardless of Holder's advice. "I hope what senior Justice Department officials said to me -- that this is a brilliant choice -- will prove to be true," Sen. Tom Carper, D-Del., said on the Senate floor.
Senate Majority Whip Dick Durbin, D-Ill.. notes that some Republicans, including Sen. Orrin Hatch of Utah, have praised Holder. Durbin says he hopes Holder doesn't become a target. "If there's a serious concern about any nominee, then we should take it seriously, but this idea that there has to be at least one controversial nominee -- I don't want to start with that premise," he tells Legal Times.
The Senate has confirmed Holder for three previous jobs, and this time he'll have the support of a big Democratic majority.
Still, a team is forming just in case. Holder is being shepherded through the political process by Ronald Weich, chief counsel to Senate Majority Leader Harry Reid, D-Nev., and a former Zuckerman Spaeder partner. Weingarten, an old friend of Holder's who represented him during the Marc Rich hearings in 2001, is reprising his role in the confirmation hearing.
"We dealt with it directly eight years ago. We'll deal with it directly now," Weingarten says of the Rich pardon. He predicted that the document requests wouldn't delay the hearings. "There will be discussions, people will figure what they really want, Senator Specter will be given the deference he deserves, and things will move quickly," he says.
Advocacy groups are lining up in a way that could make Holder's nomination a warm-up for judicial nominations.
Jay Sekulow, chief counsel of American Center for Law & Justice, says his group is still researching Holder's background. Sekulow says ACLJ is particularly interested in Holder's involvement in the Elian Gonzalez matter, which still evokes strong feelings from the millions of Americans who followed the story. While opposition to Holder's nomination has not hardened among conservative legal groups, Sekulow says he expects more organization as the confirmation date nears. "It is starting to crystallize now," he says.
Kathryn Kolbert, president of the liberal People for the American Way, says, "We'll be engaging our activists in this fight and targeting senators who try to play politics with the Department of Justice."
Wilmer Cutler Pickering Hale and Dorr's Reginald Brown, a former associate White House counsel to President George W. Bush, says there's some interest in tapping into the sincere anger over the Rich pardon, though there's a risk in going too far. "It wouldn't be surprising to me to see the Republicans try to scuff him up a bit to take some of the shine off a new attorney general," Brown says. But, he adds, "I think it's unwise to attack an attorney general candidate in the current environment, particularly if you don't have the votes to block him."