Gov. Gavin Newsom best not plan to appoint a new attorney general too quickly because there is a very distinct possibility that current Attorney General Xavier Becerra, nominated to the Secretary of Health and Human Services, will not be confirmed by the US Senate.

Thus far Senate Republicans have been fairly restrained about President-elect Biden’s cabinet appointments; a new president usually gets his first set of picks although President Trump did lose his first Labor Secretary.  But Becerra has two drawbacks that the others do not have.

First, he has no direct experience in the bureaucracy of health care, yet he would be heading up a massive federal health care agency.  Already there is some grumbling over this; most secretaries of HHS have had some medical or healthcare background; Trump’s current secretary, Alex Azar, came out of the pharmaceutical industry. 

A second problem is that Becerra is not a Washington insider with the contacts that would help ease his way through confirmation.  He did serve 24 years in Congress, although not on the health care committees.  In those years he rose in Democratic ranks and was known as one of the more partisan Democrats in the House. 

And that brings up his biggest problem: Republicans.  The United States Senate is controlled by Republicans; there are 50 right now to 48 Democrats.  For Democrats to gain parity and nominal control of the Senate with a Democratic vice president, they need to win both seats in the January Georgia runoff.  That’s a tall order.

So Becerra has to look for a Republican or two to get him over the top; that is likely to be hard to find.  Moderate Republican Sen. Susan Collins of Maine just went through a bruising campaign in which Democrats spent millions trying to defeat her; she is not likely to be in the mood to help Becerra and has already expressed concern about his lack of a health care background.  The other well known GOP moderate, Sen. Liza Murkowski of Alaska, is facing re-election in 2022 and will not want to be the deciding vote on conforming Becerra, especially if she could face a Republican primary.

Becerra’s biggest problem with Republicans, and possibly with some Democrats, is his record on abortion as California attorney general.  While it is one thing to be pro-choice – one would assume that all of the Biden appointees are – it is another to be perceived as having harassed pro-lifers through legal action.  

Becerra will face blowback over his filing of criminal charges against a documentary film maker who claimed to have filmed Planned Parenthood employees secretly discussing the pricing of aborted fetuses and body parts.  

Then there is the Little Sisters of the Poor case. This order of Catholic nuns objected to having to buy health insurance with contraceptive coverage in it. The case was fought over for years but in 2017 the Trump Administration came down on the side of the Sisters giving them a religious exemption from the contraception mandate.  Becerra sued, one of his one hundred or so suits against the Trump Administration.  In 2020, he was the losing side when the Sisters won in the Supreme Court on seven to two decision.  He also lost a case before the Supreme Court to force pro-life pregnancy centers to advertize abortion.  Despite the fact Becerra is Latino and a Catholic; he is likely to face some opposition from the Catholic hierarchy over his abortion suits. 

But possibly the worst problem Becerra will face is the strange case of a convicted cocaine trafficker named Carlos Vignali, who was pardoned by President Bill Clinton on his last day in office.  The pardon caused an uproar because Vignali’s wealthy father, Horacio Vignali, had paid off a number of prominent politicians, including Clinton’s own brother-in-law, to get the pardon for his son. 

A prominent Los Angeles Democratic campaign contributor, Vignali had given 17,000 to Xavier Becerra’s campaigns.  Just before Clinton left office Becerra wrote the White House encouraging the pardon and noting that the Vignalis were “dear friends, and “solid upstanding members of the Los Angeles community” who were convinced of their son’s innocence.  Becerra followed up his letter with several calls to the White House, including one the day before Clinton left office.

The Vignali pardon as met by outrage, including by the Los Angeles judge who had sentenced Carlos Vignali.  He noted that while Vignali walked free, his fellow African American defendants did not and spent many years in prison.

Finally, there is likely to be some opposition from the California and national business communities.  Becerra has been accused of writing ballot summaries as attorney general favoring the Democratic and liberal positions on ballot measures.  For instance, last month’s Proposition 15 was a multi-billion property tax increase rejected by the voters, but Becerra’s ballot title never mentions it raises taxes.

There is even some question why Becerra is up for the HHS job in the first place.  Supposedly it was slated for the Latina governor of New Mexico but she fell out of favor, and the Hispanic Caucus pressed Biden to name another Latino.  According to published reports Biden’s people then selected Becerra, who was actually under consideration for attorney general, a post he was obviously more qualified for. 

His appointment was certainly not the result of a close relationship with Biden; in announcing Becerra Biden managed to mispronounce his name not once but twice.

It is unlikely Becerra can obtain a majority vote for confirmation in the Senate Health Committee even if Democrats manage to get parity on the committee.  If the committee fails to report his nomination favorably, it is quite conceivable that Democratic senators could ask Biden to withdraw the nomination, rather than have an airing of the Vignali matter on the Senate floor and a floor vote they may very well lose.