If Holder goes, contentious fight looms over Obama’s next attorney general

A new attorney general could be hard to find.

Eric Holder teased the notion this week that he might step down from his spot as the nation’s top cop at the end of the year.

Holder’s tenure as head of the Justice Department (DOJ) has been fraught with controversy and GOP criticism, as more than 100 lawmakers have called for his resignation and House Republicans led a vote placing him in contempt of Congress.

But finding his replacement is likely to be even more contentious.

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A new attorney general will face a thorough grilling from conservative senators on highly sensitive issues like the decision to stop defending the Defense of Marriage Act, attempts to close the Guantánamo Bay prison, moves to block the implementation of state voter ID laws and the department’s refusal to give Congress thousands of documents relating to a failed gun-tracking operation.

Among the names floated so far as possible candidates are Sens. Amy Klobuchar (D-Minn.), Sheldon Whitehouse (D-R.I.) and Claire McCaskill (D-Mo.), as well as Homeland Security Secretary Janet Napolitano, Deputy Attorney General James Cole, U.S. Attorney for the Eastern District of Virginia Neil MacBride, Massachusetts Gov. Deval Patrick and Illinois Attorney General Lisa Madigan.

Spokesmen for Whitehouse and Patrick said they were not interested in becoming the attorney general.

None have indicated that they’d like to take on the high-profile position. The reluctance is partly out of respect for Holder, who has yet to decide whether he will step down, say congressional sources.

But it also stems from the unquestionable political and legal baggage that will come with the position over the next four years, and what is likely to be a grueling confirmation process in the Senate.

The new attorney general will face Republican demands for internal DOJ documents relating to the agency’s handling of “Operation Fast and Furious,” which oversaw the sale of thousands of firearms to criminals and might have contributed to the death of a Border Patrol agent.

Rep. Darrell Issa (R-Calif.), the chairman of the House Oversight and Government Reform Committee, and Sen. Chuck Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, investigated the flawed operation for 18 months.

After Holder failed to comply with a subpoena for internal DOJ communications about “Fast and Furious,” Issa led a successful vote to place him in contempt of Congress. The U.S. District Court for the District of Columbia has begun hearing the civil contempt lawsuit that Issa and House Republicans voted to bring against Holder.

“Attorney General Holder's departure would not end the committee's investigation of Operation Fast and Furious and the Justice Department's response,” said Becca Watkins, a spokeswoman for Issa, in a statement to The Hill.

“Any nominee should expect to face questions about the department's inadequate response.”

Several Republican congressional sources, who did not want to be named because Holder has not announced his resignation, warned that senators could consider placing a hold on a new Justice head’s nomination until lawmakers received the DOJ documents.

Grassley, who leads Republicans on the panel in charge of questioning a new attorney general nominee, placed a hold on Cole’s nomination last year until the DOJ handed over a separate set of documents pertaining to “Operation Fast and Furious.” And the senior lawmaker has repeatedly called on Assistant Attorney General Lanny Breuer to resign for his role in failing to properly oversee the operation.

But the Iowa Republican stopped short of predicting what would happen if Holder stepped down, saying only that he wants more transparency and cooperation from the DOJ.

“I have not heard from the administration or the attorney general as to his future at the Justice Department,” said Grassley in a statement to The Hill. “I look forward to his decision, and hope, with or without his leadership, the department begins a new era of transparency and accountability.”

The co-chair of the American Bar Association's criminal justice section, Jim Felman, said that if Holder steps down, he hopes Republicans will base their confirmation vote on the merit of the nominee. Felman said it's the court's job, not the Senate’s, to decide whether Issa is entitled to the documents he subpoenaed.

“It’s for the courts to make an assessment as to whether those documents should be turned over or not and it seems like that should be able to play out,” said Felman. “I don’t know why it would be a good thing to select the attorney general of our country based on whether they’d be willing to give up that litigation or not.”

Whomever the administration chooses to fill Holder’s shoes, they are going to have to earn the respect of the men and women within the DOJ as well as on Capitol Hill. Felman, who is an Obama supporter, believes that Cole would be the strongest fit for the role.

“The guy’s eminently qualified,” said Felman. “I’m sure there are well-qualified candidates, but I don’t know of anybody better qualified than the Cole, who’s there right now as the number 2.”

Democrats have lauded the significant changes that Holder has ushered in and point to a recently released, exhaustive report by the DOJ’s independent inspector general that determined Holder did not know about the controversial gun-walking tactics used in “Fast and Furious” prior to learning about it in the news.