Today, the Senate confirmed the President’s AG nominee, Loretta Lynch. Some of you are upset that many Senators voted for; others that many voted against. Here’s my pitch for why there’s something to say for a decision in either direction. My reasons have nothing to do with Lynch, but rather institutional settlement and practical politics.
Broadly-speaking, my view is that the Senate should be deferential to executive-branch nominees because of the unitary executive doctrine. Executive-branch officers are surrogates for the President, his “hands,” as courts have sometimes put it; “[t]he impossibility that one man should be able to perform all the great business of the state, I take to have been the reason for instituting the great departments, and appointing officers therein, to assist [him] in discharging the duties of his trust,” quoth Washington. When we see executive-branch officers in this light, it seems clear to me that Senates should be deferential to Presidents’ choices: A President can only discharge his or her duties through surrogates, and the very nature of the executive branch militates in favor of surrogates that (s)he trusts. To be meaningful, deference must have both reach and limits. It must oblige us to vote for at least some candidates about whom we have misgivings; on the other hand, it cannot be a blank cheque, so as to defeat checks and balances. Deference must not be abdication. 1 Sometimes a nominee may be so ill-considered or egregious that the Senate has to say no: For example, were a President to nominate a tax-dodger to run the Treasury, that would probably justify Senators voting against that person. 2 Absent extraordinary circumstances, however, Senators should keep in mind that executive-branch nominees are simply the President’s officers, subject to his control, and—again, broadly-speaking—(s)he must be allowed to to pick his or her surrogates. (SF veterans will know I’ve been arguing this position for a decade now. It’s also why I disagree with many Hoosier friends on the current Pence-Ritz contretemps, not so much on the merits but on the terms of engagement.)
So where does Lynch fit into this framework? I don’t know. The knock on Lynch is that she agrees with the position taken by President Obama recently on his power over immigration policy rather than the contrary position taken by him up until recently. (The claims of racism advanced by some Democrats cannot be taken seriously.) So think about Youngstown, the steel seizure case. Suppose Truman had nominated an AG who shared his view that he had the authority to order that seizure; should we be surprised that a President wants an AG who shares his legal positions? Does it make a difference whether that nomination came before or after the Supreme Court ruled against the administration in Youngstown? I don’t know. Or: Suppose that PRISM had come out while President Bush was in office and a nomination to the AG’s office was pending; the Democrats think that it’s illegal and ask the nominee whether (s)he agrees with the President—you think that the President’s going to nominate someone who says no? Or that he should? Similarly here: Is it surprising that the President wants an AG who doesn’t think that an important administration initiative is illegal? Could such a position rise to the extraordinary circumstances necessary (in my view) to vote against a nominee? Suppose that President Cruz nominates John Yoo as his AG; the Democrats think Yoo’s positions on executive power, taken during his time in academia and the Bush administration, are extreme. (They are, by the way, but not necessarily because he’s wrong.) Does that justify a “no” vote? I doubt that. And I’m doubtful that Lynch meets the standard either.