Why it doesn’t matter if Todd Blanche gets confirmed as attorney general
Washington is treating Todd Blanche’s nomination to be attorney general as if the future leadership of the Justice Department hangs in the balance. It does not.
Mr. Blanche already serves as acting attorney general. More importantly, because he is the Senate-confirmed deputy attorney general, he can continue performing the attorney general’s duties whether or not the Senate confirms him for the permanent position. The confirmation battle might be politically significant, but legally it changes very little.
The reason is straightforward. Congress has long distinguished between temporary acting officials appointed under the Federal Vacancies Reform Act and Senate-confirmed deputies who automatically assume the responsibilities of a vacant office under agency-specific succession statutes.
For the U.S. Department of Justice, that statute is 28 U.S.C. § 508, which provides that the deputy attorney general “may exercise all the duties” of the attorney general whenever there is a vacancy or absence. Because the deputy attorney general has already received Senate confirmation, the ordinary time limits that constrain many acting officials do not apply.
In the Justice Department itself, Robert Bork served as acting attorney general in 1973 under § 508(b); a DOJ OLC memorandum later noted that a federal court upheld his service for an unlimited period.
Other acting Cabinet secretaries have led without confirmation
This is hardly unprecedented.
The most prominent recent example is Julie Su. Confirmed by the Senate as deputy secretary of labor, she became acting secretary of labor when Marty Walsh resigned in 2023. Although the Senate never confirmed her to the Cabinet post, even as President Joe Biden nominated her, she continued serving as acting secretary for nearly two years under the Department of Labor’s succession statute.
The Government Accountability Office concluded that the Vacancies Reform Act’s time limits did not apply because a separate statutory succession provision governed her service.
Nor is the Department of Labor unique — consider, for example, Sloan Gibson, a Senate-confirmed deputy secretary of veterans affairs, served as acting secretary in 2014 under 38 U.S.C. § 304.
Throughout the federal government, Senate-confirmed deputies have frequently served as acting agency heads under office-specific succession statutes while nominations stalled or failed.
Congress deliberately created these succession systems to ensure continuity in the operation of critical executive departments.
That continuity is especially important at the Department of Justice. Criminal prosecutions, national security decisions, civil litigation and legal advice to the president cannot simply pause because the Senate has not acted on a nomination. Section 508 ensures that they do not.
DOJ would not become rudderless if Senate rejects Blanche as AG
In the DOJ case, the Senate’s advice-and-consent role is close to meaningless: Whether Blanche is attorney general or acting attorney general hardly matters. Because he is the Senate-confirmed deputy, he can stay on as acting AG until the president dismisses him.
The Senate is fully entitled to decline to confirm Blanche as AG, just like the Senate declined to confirm Su as secretary of labor. But it does not matter: Blanche can stay on as the head of the Department of Justice until dismissed by the president.
But observers should understand what is — and is not — at stake. A failed confirmation would not leave the Justice Department leaderless, nor would it remove Mr. Blanche from its helm.
Unless President Donald Trump appoints someone else who is confirmed by the Senate, removes Blanche as deputy attorney general or Congress changes the governing law, Blanche may continue serving as acting attorney general under Section 508.
That makes the current confirmation fight less a battle over who runs the Justice Department than a battle over symbolism and politics.
The headlines suggest that confirmation will determine who leads the nation’s chief law enforcement agency. The law says otherwise.
Michael J. Broyde is a professor of law at Emory University.
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