Uncertainty and the Scales of Justice in 2017
Much of this nation fidgets with anxious curiosity, ten days removed from the explosive conclusion of the 2016 election season, as every disparate constituency in this land ponders the looming prospect of an executive branch conceived, constructed and realized unlike any that have come to pass in the 240-year trajectory of our constitutional representative democracy.
But on the morning of the 10th day-in, we have started to see come gelling—some potential cohesion in a fraught and perhaps not-as-mysterious-as-first-billed Cabinet selection process.
As Friday, the 18th of November dawned, we got our first, admittedly unsubstantiated, list of names for executive branch posts. And there at the top, Alabama Republican Sen. Jeff Sessions, an early Donald Trump advocate and unwaveringly loyal supporter, who very much appears now to be the front-runner for the Attorney General’s post.
LEVICK Litigation predicts a lengthy confirmation process for Sessions, despite the fact that Sessions would, when considered from a surface-value standpoint, be a comparatively safe pick. Sessions, a comfortable denizen of the Senate since the 1996 general election, is, by all accounts, affable, easy-going, genteel, and well-regarded by his colleagues.
He is also a recognizable face on the Judiciary Committee, a body with which he has a bit of a strained history.
That same Senate Committee turned aside Sessions from a federal judgeship in the 1980s, at which time he was a federal prosecutor in Alabama of some repute, and Ronald Reagan resided in the White House. Sessions couldn’t get through the committee based on racial issues, primarily, and while he later ascended to a seat on the deliberative body that once kicked him to the curb, his longstanding position there does not guarantee him an easy ride. Indeed, it likely makes for more extensive hearings, more fireworks, and live wall-to-wall live broadcast coverage of the committee proceedings.
Sessions will emerge quite bruised. But chances are quite good that he will emerge.
So what do we make of this appointment? We assess first that much of that nervous, wildly speculative, mysterious air has now gone out of the Cabinet appoint process. Look, for just a moment, at how the prior arrangement of tealeaves was being interpreted, in the particular regard to the Department of Justice:
Just after news of the election results broke, there were two deadlocked, front-running candidates for Attorney General.
The first, current New Jersey Governor and former US Attorney for the District of New Jersey, Chris Christie, now finds himself on the outside of the transition team, looking back in, after a bet-all gamble on an early allegiance to the Trump camp hasn’t panned out in his favor. Christie would have proven difficult to confirm, even for a GOP-majority Senate, due in large part to a series of rather nasty, well-documented traffic snarls.
The second-most obvious candidate, former New York Mayor Rudy Giuliani, might also have been somewhat of a no-brainer, given his powerful, animated and near-omnipresent existence through the last year as a visible, recognizable figure charged with advancing Trump’s prospects. Giuliani, himself a former US Attorney and Associate Attorney General, certainly knows how to navigate the Halls of 950 Pennsylvania Avenue, the address of the New Deal era Robert F. Kennedy Main Justice Building, but Giuliani, a man who could conceivably write his own ticket in the forming of this new administration, apparently doesn’t want this particular job.
That shifts us back to Sessions, whose name, gently floated on Friday morning, along with that of Gen. Mike Flynn as head of the National Security Council, gives insight into the overarching thinking of the Trump transition team. For the most part, it would seem, early loyalists have the inside track on some plum positions. This should be kept in mind as we think through the potential future directions of the Securities and Exchange Commission, and the Department of Homeland Security.
Next up from the LEVICK Litigation blog: what an interim-period Justice Department looks like, and what it will and won’t do, in the midst of the Sessions confirmation.