The Loretta Lynch Race Game

Saturday’s Washington Post front page carries on its recent tradition of fanning racialist flames without substantial regard to fact or context. 

The header reads: “Race creeps into debate over stalled nomination for attorney general” and the first graph notes that “African American and other civil rights leaders” are infuriated that Loretta Lynch’s confirmation as attorney general has been held up because of -- you guessed it -- racism. Responding to the president’s dog whistle, National Action network and multimillionaire tax scofflaw Al Sharpton says he’s going on a three-day hunger strike to force consideration of her nomination. Be our guest, Al. (Although after the stomach stapling, there’s not much more to be lost.)

Again the formerly respectable civil rights movement is shilling for the Democrats in general, and Obama in particular, and the Post fails to present the issue fairly. Once again the “civil rights groups” prove themselves as blindly partisan as the no nukes crowd who protest the building of nuclear power plants here and say nothing of the Iranian nuclear arms buildup and the human shields who never tie themselves to the doors of Israeli nurseries. How easily they all ceded any moral authority.

The record shows that the holdup is not racist and not unprecedented. The charge, moreover, is pure projection -- the left attributing to its opponents its own bad behavior.

1.  Eric Holder

Lynch is nominated to replace another black, Eric Holder, who was confirmed overwhelmingly by the Senate.

Then chair of the Senate Judiciary Committee Patrick Leahy praised the “Strong, bipartisan vote in favor” of the nomination and those who did oppose him, had sound reasons other than racism for their opposition, including his role in the pardon of Marc Rich, his refusal to state he would not prosecute intelligence agents for their role in interrogations and his views on gun control. Senator Jeff Sessions who must win a prize for faulty prognostications said  “he was sure that Mr. Holder would be “a responsible legal officer and not a politician.”

In fact, he proved day after day to be a political animal whose conduct has allowed the administration to ignore the law without consequence time and again. Given his record, there is no reason to treat Lynch’s nomination in the usual way: We are at a crossroads between tyranny and constitutional government and the role of attorney general is critical to getting us back on the right track. Indeed, Holder’s own contempt of Congress respecting Fast and Furious gunrunning to Mexico and failure to enforce Congressional subpoenas against other members of the administration should be one of the major holdups of the Lynch nomination.

 Holder is the first attorney general ever held in contempt by Congress for his unjustified refusal to turn over thousands of documents in the Fast & Furious investigation. His combination of unpreparedness, dissembling, and arrogant disregard for Congress's oversight function displayed in his latest testimony was simply stunning.

Members of Congress have grown familiar with Holder's pattern of non-responsiveness to legitimate congressional inquiries, and his subordinates have demonstrated an equally dismissive attitude towards Congress. Holder's own expressions of contempt for members of Congress are beneath the dignity of his office and a startling departure from the comportment of prior attorneys general.

The Justice Department is the most powerful component of the federal government. Holder is proving again the old maxim that power is corrupting. An attorney general who respects the power he has been given, instead of abusing it, is long overdue.

In his testimony before the Senate Judiciary Committee, Professor Jonathan Turley (no conservative) detailed serious erosion of the Constitutionally mandated separation of powers under this administration in which Holder played a significant part, including the vast expansion of executive powers. Most significantly he testified:   

Confirmation hearings take on added importance during such constitutional crises. Indeed, confirmation hearings have grown in importance as congressional authority has declined vis-à-vis federal agencies. As I have noted in some of my recent scholarship, confirmation hearings have developed into an important check on agency abuse and now perform a unique dialogic role between the political branches. While Congress holds the power of the purse, this power is far more limited than academic work would often suggest. The threat to cut off funding to agencies that administer critical social programs or perform critical social functions is considered by many to be the ultimate “nuclear option.” The shared appointment power, by contrast, offers Congress a less drastic method to not only raise conflicts but also force answers from agencies. It is becoming more common to see agencies stonewalling Congress or failing to fully answer committees on matters of public interest.

Confirmation hearings necessarily raise not just the credentials but also the policies to be pursued by a nominee, particularly when there is an impasse with Congress and the agency. Indeed, such hearings often force commitments for changes or policies to assure the Senate that a candidate is prepared to respect the basic conditions of interbranch relations and privileges under the Constitution. Recently, I read with some interest the statement of former Solicitor General Charles Fried who noted that he was expressly asked for assurances on his future actions in offices and felt duty bound to fulfill those promises. Confirmation hearings allow Senators to confirm new commitments and direction for departments. In so doing, past conflicts can be reduced or, in the very least, directly addressed between the branches.


More than any other department, the Justice Department has played a key role in facilitating the attack on congressional authority. The confirmation of an attorney general necessarily raises the question of not just whether she will lead a federal department but what department she will lead. The Justice Department was once viewed as an apolitical institution that rose above political infighting and maintained a principled approach to the interpretation of the Constitution, particularly in deference to the separation of powers. In recent years, it has become both overly antagonistic and litigious with regard to the exercise of well-established legislative powers. 

Lynch's responses to questions about whether she’d respond to Congressional subpoenas to the executive branch which Holder has not, was lawyerly but unpersuasive to those looking for a change. 

Indeed, there is nothing in her testimony or record that indicates she’d behave any differently than has Holder, whose inaction has permitted the most lawless behavior.

Another reason it’s being held up is that the Democrats refuse to pass a bill outlawing human trafficking unless it contains funds to provide abortions for those who were trafficked.

(CNN)Senate Majority Leader Mitch McConnell on Sunday said he plans to hold up attorney general nominee Loretta Lynch's confirmation until the Senate passes a now-controversial human trafficking bill.

"This will have an impact on the timing of considering a new attorney general," McConnell told CNN's Dana Bash on "State of the Union." "I had hoped to turn to her next week, but if we can't finish the trafficking bill, she will be put off again."

Democrats are now holding up the trafficking bill, which glided through the judiciary committee, after they noticed an abortion provision embedded in the bill that would prevent victims of human trafficking from using restitution funds to pay for an abortion.

"We have to finish the human trafficking bill," McConnell said. "The Loretta Lynch nomination comes next."

2. Is the Holdup Entirely Due to Republican Opposition?

Hardly. In November, when the Democrats controlled the Senate and the White House, her nomination would have sailed through. Instead the Democrats used the waning hours of their power monopoly to change the filibuster rules and ram through Obama’s judicial picks. Obama’s own party left her at the altar.

3. Is the Holdup Unprecedented?

While confirmations for attorney general have not in recent years been held up for long under some notion of comity, when it comes to judgeships the story is quite different -- with Democrats regularly blocking minority candidates. In 2003, George W. Bush nominated the eminent black woman jurist Janice Rogers Brown to the prestigious U.S. Court of Appeals for the District of Columbia Circuit. Democrats stalled her confirmation for two years. She finally began serving in that position on June 8, 2005. I don’t remember Al Sharpton complaining about the holdup nor do I recall any civil rights groups claiming the delay was based on racism. She is a conservative. Certainly that explains the different treatment and why they didn’t consider it “racist”.

Miguel Estrada’s situation didn’t get them out on the streets either, and I don’t recall any complaint by La Raza or any other self-styled civil rights groups claiming to represent Hispanics. If I might remind you, the Honduras-born Estrada, almost universally considered a very brilliant lawyer, was nominated in 2001 by George W Bush for the same U.S. Court of Appeals for the District of Columbia Circuit. For twenty-eight months the Senate confirmation dragged on; finally the Democrats used a filibuster to prevent his nomination from being given a final confirmation vote by the full Senate. A leaked memo by minority Whip  Dick Durbin indicated that liberal interest groups' wanted  to keep Estrada off the court partially because "he is Latino," and because of his potential to be a future Supreme Court nominee.