Cotton’s Blockade on Justice Department Nominees Raises Tensions

A Republican senator is stalling all Justice Department nominees over unrelated concerns about Black Lives Matter litigation, a standoff that’s slowing usually non-partisan U.S. attorney confirmations and could cause complications for both political parties.

Sen. Tom Cotton (R-Ark.) is blocking the traditionally rapid floor consideration of six U.S. attorneys and two U.S. marshals. He is insisting the Justice Department provide legal representation to four deputy marshals who’ve been sued for their role in the 2020 Black Lives Matter protests in Portland, Oregon, or give a more fulsome explanation.

In addition to affecting dozens of other chief prosecutor vacancies the White House has yet to fill, the standoff threatens to delay staffing of higher-profile slots at Main Justice, including the heads of the Civil and Tax Divisions and office of legislative affairs. The ploy could backfire on Republicans the next time they control the White House and want to expedite their own nominees.

“The nature of these positions at the Justice Department is such that vacancies are felt in local communities, and I think at a certain point senators of both parties would want to see them filled,” said Gregg Nunziata, a former chief nominations counsel for Senate Judiciary Committee Republicans. “Blanket holds are an aggressive tool that places some political pain on everyone, and the question is which side blinks first.”

Cotton, considered a potential 2024 presidential contender, remained undeterred Wednesday as Majority Leader Chuck Schumer (D-N.Y.) described his “partisan obstruction” as “a new low for the Senate,” in a floor speech.

‘Unfortunate’ Position

The Justice Department has said it’s paying to represent over 70 federal employees who were sued in connection to the Portland events. DOJ cited attorney-client privilege in a letter to Cotton that declined to specify why one marshal was denied representation. The Justice Department is still weighing final decisions on three others.

On the Senate floor on Wednesday, Cotton described them as “four brave U.S. marshals who defended the federal courthouse in Portland from left wing street militias associated with the BLM movement and antifa.”

Several Senate Democrats said in response that Cotton’s position is punishing other marshals and prosecutors languishing before the Senate.

With Cotton showing no signs of backing down, the already slow process of getting political appointees confirmed in the evenly split Senate is taking even longer.

Cotton is objecting to the usual procedure by which both parties agree by unanimous consent to fast-track non-controversial nominees—including almost all U.S. attorneys and marshals—in packaged votes. As a result, Senate Democrats’ only option is to schedule hours of floor debate on each nominee, one at a time.

Cotton’s “unfortunate” position causes “a tremendous diversion of resources of both Congress and the department to have to deal with his holdup of nominees,” said Peter Kadzik, DOJ’s legislative affairs chief under Barack Obama.

Cotton cast his motive as a non-political concern about the livelihoods of four career civil servants.

“All the Department of Justice has to do is answer Sen. Cotton’s question. It’s really not that complicated,” a spokesman for the senator said.

Breaking Logjam

Frustrated Senate Democrats want Republican Leader Mitch McConnell (R-Ky.) to lean on Cotton to relent, a Senate Judiciary Committee Democratic aide said. One alternative is scheduling floor debate late at night or over the weekend, the aide said.

Samuel Ramer, who served as acting head of legislative affairs at DOJ for the first year of the Trump administration, predicted the department would be the party to break the logjam.

“I think it’s more likely that DOJ will feel the pressure to go talk to Cotton’s office and give some explanation or expand on its explanation before there is overwhelming pressure from the majority leader or minority leader,” said Ramer, a partner and head of congressional investigations at Norton Rose Fulbright.

Although the public-facing letter correspondence hasn’t yielded progress, it’s typical for the Justice Department and other agencies facing similar stalemates to privately coordinate a compromise with the objecting senator’s staff.

There’s been “no substantive conversation about the issue” with DOJ, said Cotton’s spokesman. DOJ media representatives didn’t respond when asked about any behind-the-scenes talks.

Yet Jeremy Paris, who used to head nominations work for Judiciary Committee Democrats, said the Justice Department has good reason not to blink.

“You don’t want to enable this kind of blockade any time there’s a DOJ decision a senator doesn’t like,” Paris said. Congressional involvement in individual Justice Department litigating decisions “can be really problematic.”