Saturday, November 8, 2014

President Obama has nominated Loretta Lynch, the U.S. attorney for the Eastern District of New York, to be the next attorney general of the United States to succeed Eric H. Holder Jr.

He should have refrained from submitting the nomination to the Senate for its constitutionally required advise and consent until it convenes in 2015 under Republican leadership in the 114th Congress.

The American people repudiated Mr. Obama and Senate Democrats last Tuesday. While Democrats retain control of the Senate during the lame duck session of Congress until Jan. 3, their popular legitimacy ended with the midterm election results. Senate Democrats should thus confine themselves to consensus issues until the clock runs out on the 113th Congress.

If the Senate were to confirm the Lynch nomination in the lame duck session with only Democratic votes, public opinion would be mocked and a core principle of democratic governance would be flouted. Lame duck sessions were authorized by the Constitution to accommodate the logistical constraints of travel to and from the seat of government centuries ago, not to enable electoral losers to circumvent popular will. If the lame duck Democratic Senate nevertheless acts on the Lynch nomination, the estranged relations between Democrats and Republicans will be aggravated and the prospects of bipartisanship further diminished. The Democratic Party would lose.

History speaks volumes.

In the elections of 1800, voters soundly rejected the Federalist party and President John Adams in favor of Democratic-Republicans and presidential challenger Thomas Jefferson. Democratic-Republicans captured majorities from Federalists in both the House and Senate. In the lame duck session before the next Congress convened and the inauguration of President Jefferson, Federalists enacted the Judiciary Act of 1801 (Midnight Judges Act) to create 16 new circuit judgeships with enlarged federal jurisdiction. President Adams rapidly appointed Federalist judges with the advise and consent of the Federalist controlled Senate. But their tenures quickly ended when the Democratic-Republican controlled Congress abolished the new judgeships in 1802 amid popular acclaim.

The Midnight Judges Act proved a political debacle for the Federalist party. It never again held power at the national level, and lost additional seats in Congress in 1802 and 1804.

Senate Democratic Majority Leader Harry Reid, Nevada Democrat, however, is like the French Bourbon monarchs. He forgets nothing, and learns nothing. He will attempt a Senate confirmation vote on Ms. Lynch before his Democratic majority officially expires accompanied by the usual Democratic demagoguery.

The majority leader will assert that Ms. Lynch is a woman, and thus Republican opponents of entertaining her nomination in the lame duck session are misogynists.

He will trumpet that Ms. Lynch is black, and thus Republican opponents of a swift confirmation vote are racists.

Neither the public nor Senate Republicans should be swayed by the Democrats’ discredited race and gender cards.

The position of attorney general is too important to the rule of law to be occupied by persons unschooled in the U.S. Constitution’s separation of powers or beholden to the president. Among other things, a nominee should be fully versed in war powers, predator drone killings of American citizens, state secrets, executive privilege, enhanced interrogation techniques, national security spying, cyber-warfare, military commissions, enemy combatants, executive agreements in lieu of treaties, immigration, the duty to faithfully execute the law, the Espionage Act, and the Speech or Debate Clause.

A nominee should understand that the first and only loyalty of the attorney general is to the Constitution, not to the temporary occupant of the White House. She should be prepared to resign if the president offends against a clear and material constitutional limitation. And she should be eager to affirm that then Attorney General Elliot Richardson did the right thing in resigning rather than follow President Richard Nixon’s order to fire special prosecutor Archibald Cox, and that then-Attorney General Francis Biddle did the wrong thing in failing to resign after President Franklin Roosevelt ordered concentration camps for 120,000 citizens or permanent residents because of their Japanese ancestry.

The extensive Senate vetting of nominee Lynch that should precede any action to force the issue by Mr. Reid in the lame duck session. Voters should alert him that a steep political price will be paid by the Democratic Party in 2016 if he races Ms. Lynch across the confirmation finish line moments before the Senate turns Republican.

For more information on Bruce Fein, visit brucefeinlaw.com.

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