Elections have consequences. Mr. Obama’s historic 2008 election and re-election in 2012 entitle him to choose the appointees he wants for the open positions in our government. In the case of Attorney General and most appointments, the senate must advise on and consent to those appointees. I have long held the belief that a president’s appointments should be confirmed if the individual is qualified.
Subjecting a nominee to a political or philosophical litmus test is improper, in my view. After all, one should rightly expect that the elected president has the right to choose qualified individuals whose views and policy prescriptions are consistent with the President. To the winner goes the spoils.
The political reality of the appointment process changed when Democrats refused to support the Supreme Court appointment of Robert Bork, solely and expressly on partisan, ideological grounds. Robert Bork was the most qualified jurist in American history not to be confirmed. The shift from opposing appointees on grounds of qualification to opposing them on grounds of political beliefs became known as “Borking.” It’s an unpleasant reality in our modern society when political views themselves disqualify otherwise qualified nominees. It is further evidence of the failure of both parties and the steep decline in substantive bipartisanship that use to permit the parties, on occasion, to simply do the right thing for our country.
This analysis brings us to the curious case of Loretta Lynch. By nearly every calculable measure, Ms. Lynch holds the necessary qualifications to be the Attorney General of the United States. Her resume is impressive, and her career is substantial. She holds political views with which I disagree, and she embraces a view of division and anger on some issues that I find unhelpful to her prospective post. To be sure, if I were President, she would not have been my nominee for the Attorney General of the United States. Unfortunately for Ms. Lynch, she also arrives at the wrong time in history, appointed by the wrong President. These facts have to be considered as part of her nomination hearing process.
After six years of President Obama, Americans have seen an unprecedented attempt to expand Presidential power. Discarding the Constitution for his own pen and phone, this President has attempted to convert the subtle shift in executive power we have seen over decades and across parties into an imperial presidency. The President believes that he may act unilaterally on treaties, war, prisoner exchanges and U.S. immigration policy. He has peered into the Constitution and found that his powers have no limits. This may be why he lost both the House and the Senate, and since 2010, has remarkably caused 28 U.S. Senators to be fired and replaced by an even more unpopular party.
Now, the President nominates Ms. Lynch for Attorney General. The Attorney General, it should be noted, might be appointed by the President, but he or she is not counsel to the President. The job of the Attorney General is to enforce federal and constitutional law on behalf of the people. Simply put, the Attorney General must be strong enough to protect America from all sorts of crimes. Most importantly, the Attorney General, particularly the next Attorney General, must be prepared to protect the United States from an imperial president and presidential abuses under the Constitution.
In her hearing, Ms. Lynch disqualified herself from this position when she agreed that the President had the Constitutional right through executive action to gut the entirety of immigration law and create de facto amnesty on his own for millions of illegal aliens. Ms. Lynch’s position is not a political view; it is a legal view that is demonstrably false. By admitting that she is not prepared to protect and defend the Constitution of the United States, she has disqualified herself from serious consideration for the job to which she has been nominated.
The issue of executive amnesty is one where innumerable partisans have taken differing positons on the legality of the President’s executive fiat. Most of these views are rooted, sadly, in political bias, academic tomfoolery, or just shameless promotion of economic interest. The President has no power granted him to create executive amnesty of the kind he has foisted on America. And no, prior Presidents did not do this, and even if they had, their violation of the law is not a justification for additional Presidential overreach.
Ms. Lynch was asked a simple legal question. It was one for which she had ample time to prepare. She failed to get that Constitutional question correct. She either does not know the right answer, or she is unwilling to stand up for the Constitution and the limits it puts on Presidential power. In either scenario, she cannot be confirmed.
Richard Kelsey is an Assistant Dean at George Mason Law School. A former Virginia state court law clerk and commercial litigator, Dean Kelsey was also the CEO of a technology company. He teaches legal writing and pre-trial practice. He is a regular commentator on legal and political issues in print, and on radio and TV. His Twitter handle is @richkelsey.