by Nancy Kassop
No baggage, easy ride to a quick and uncontroversial confirmation – these were some of the initial assumptions underlying President Obama’s November 8th announcement of the nomination of Loretta Lynch as his choice to replace Eric Holder as Attorney General. As the current U.S. Attorney for the Eastern District of New York, Lynch has been confirmed by the Senate – twice! (appointed in 2000 under Clinton and in 2010 under Obama) and unanimously – for her present position. Moreover, she asked the incoming George W. Bush administration in 2001 if she could remain in the position, indicating her willingness to serve under a Republican president, although Bush did not reappoint her.
Within five days of Obama’s nomination of her as Attorney General, however, Republicans began to lay out the areas of inquiry for her confirmation hearings, and it became clear that there would be a central focus on the scope of executive power.
Now, less than two weeks after her nomination, the stakes have heightened even more dramatically, as a result of Republican fury over the president’s November 20th announcement of his executive actions on immigration. Some Republican senators, such as Raul Labrador (R-ID), are calling not merely for questioning Lynch about her positions on the constitutionality and legality of the president’s new actions, but suggesting, instead, that her confirmation hearings be postponed indefinitely, as one possible avenue of retaliation against the president: in essence, they would hold her nomination hostage until some accord could be reached with the president on immigration. Labrador suggested in an NPR interview that incoming Senate Majority Leader Mitch McConnell “should say, first thing tomorrow morning, that he will not allow any appointments that this administration has made. So, there will be no hearings on the new attorney general… There will be no hearing on anything this president wants and that he needs.”
There was little doubt that Republican senators would scrutinize Lynch’s legal opinions intensely at the hearings as to whether she believed that the president had such authority. As early as the day of her nomination, Senators Ted Cruz (R-TX) and Mike Lee (R-UT) released a joint statement that “Loretta Lynch deserves the opportunity to demonstrate… whether or not she believes the president’s executive amnesty plans are constitutional and legal.”
So, there is no surprise that Lynch’s hearings will provide the exquisite vehicle for the president’s opponents to vent their rage at him, to question her on her position on the use of executive authority in a whole variety of contexts, and to position her as their personal punching bag for all of the deep disdain they felt towards her predecessor and the policies he championed and oversaw. From what might have been a relatively smooth and speedy confirmation process, the tables have turned to suggest that the process may be, at worst, delayed, and, at best, fraught with razor-sharp tensions for a candidate whose professional career has been described as one marked by “independence, integrity and fairness.” As Politico summed it up, the confirmation hearings may be used “as a proxy war over presidential power rather than a debate over Lynch’s qualifications.” It quoted a Senate Republican aide saying “Don’t underestimate the capacity for that to become a major battle front.”
Confirmability was, indeed, one of the primary objectives for Obama in this selection: all of the other candidates on the short list for this nomination had some feature that seemed all too likely to raise its ugly head as an obstacle to confirmation. Kathryn Ruemmler, the former White House Counsel and Obama’s personal preference for this position, given the closeness of the working relationship between a counsel and a president and her past work on every high-profile legal policy of the administration, was much too risky: one would think that presidents might learn from their predecessors (but, apparently not) that nominating a former White House staff member to a cabinet position will undoubtedly result in uncomfortable tussles with the Senate Judiciary Committee over demands for White House documents from the nominee’s work there that he or she is bound to resist under predictable claims of executive privilege. The administration was probably relieved, though disappointed at the same time, when Ruemmler chose in late October to take her name out of the running.
The other two names floated as likely contenders, Donald Verrilli, the current solicitor general, and Secretary of Labor Thomas Perez, had obvious drawbacks: Verrilli has been the face of the administration when defending its positions in cases before the Supreme Court, especially, on the Affordable Care Act and on marriage equality, and Perez endured a rough and lengthy confirmation hearing for his present position: Senator Mitch McConnell (R-KY) characterized him as “a committed ideologue who appears willing, quite frankly, to say or do anything to achieve his ideological ends.”
Once it became clear that Ruemmler was out of the running, Lynch’s star began to rise. She was always viewed as having a solid, professional resume and as someone who was well-respected, even by Republicans (former New York City mayor Rudy Giuliani told Politico “If I were in the Senate, I would confirm her…she is so much better than what they [the next Republican Senate] thought they were going to get.”. Not insignificant is the “added value” she would bring, as an African-American woman who could continue Holder’s personal outreach to minority communities in ways that have eluded the president.
Lynch has had a close relationship with Holder, stretching back to when she was first appointed to the U.S. Attorney position at the end of the Clinton administration and she reported directly to Holder, the then-sitting Deputy Attorney General, and more recently, as a member and, then, chair of Holder’s 20-member Advisory Committee, the group that advises the attorney general on policy. Thus, she is no stranger to her predecessor, has worked intimately with him on the policies that he and the department implemented, and she would presumably carry on much of the Holder agenda (strong civil rights enforcement, criminal justice reform, litigation against voter ID laws and against dilution of Voting Rights Act protections, commitment to terrorism trials in federal civilian courts, and refusal to defend DOMA in federal cases). But she would also be a much-needed “fresh face” for the last two years of an administration that has all too often elevated from within its own tight circle.
For the president’s critics, immigration will be front and center in their questioning of Lynch, but it will be accompanied by aggressive probing into other highly politicized matters left over from the Holder era, such as the Justice Department’s mishandling of the gun trafficking operation by ATF agents, known as Fast and Furious, that prompted the House to cite Holder for contempt in June 2012, and for which previously held documents have just started to be released; inquiries as to why the department failed to pursue the IRS/Tea Party scandal and, also, failed to hold accountable many of the institutions responsible for the financial crisis; and controversy over the department’s challenges to voter ID laws.
Added to all of these will also be the long-simmering issue over the administration’s approach to the detention and trial of terror suspects, a continuing source of conflict where Holder has been a high-profile defender of the use of federal civilian criminal courts for such trials, and Lynch’s own office has prosecuted more terrorism cases in federal courts than any other district in the country.
There may be an ultimate showdown at the point when the president will need to decide whether to sign the National Defense Authorization Act for Fiscal Year 2015, if it continues to contain, as have NDAAs in previous years, prohibitions on bringing Guantanamo prisoners to mainland U.S. for detention or trials. A possible scenario could be either a presidential veto of the defense bill or signing it but appending a signing statement, followed by an executive order to close Guantanamo.
Given the president’s visible impatience with Congress and his recognition that executive action will be the only way he may be able to accomplish the goals he wishes to complete before leaving office, one can assume he will “go for broke” and forge ahead.
The fight over whether the president had authority to use executive actions on immigration reform might pale in comparison to a parallel contest over his authority to close Guantanamo. Lynch will be in the hot seat on all of these issues: satisfying the president’s critics, if and when given the chance, will require a virtuoso performance.
Nancy Kassop is professor in the Department of Political Science and International Relations at SUNY New Paltz. She writes on issues at the intersection of law and politics. Her most recent articles are “Executive Branch Legal Analysis for National Security Policy: Who Controls Access to Legal Memos?” Presidential Studies Quarterly (Vol. 44:2), June 2014; and “Pro: Resolved, Presidents Have Usurped the War Power that Rightfully Belongs to Congress,” in Richard Ellis and Michael Nelson, eds., Debating the Presidency: Conflicting Perspectives on the American Presidency, 3rd ed. (Thousand Oaks, CA: Sage/CQ Press, 2014)