November 8, 2014

Confirmation questions for the next attorney general

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

This morning, President Obama announced that he would nominate Loretta Lynch, the U.S. Attorney for Brooklyn, to be the next Attorney General. Some commentators are probing her background for evidence regarding her ideological disposition; others are focusing on whether she has been an effective prosecutor. Other areas of inquiry are probably far more important regarding her fitness to be Attorney General.

By many accounts, Lynch seems to be a fine prosecutor, but so was Eric Holder earlier in his career. When Holder was elevated to the senior management ranks at the Department of Justice, he became a scandal-plagued figure. Conscientious senators should probe Lynch regarding her views on a range of issues and management decisions she would face as Attorney General, especially given the numerous scandals during Holder’s tenure and some highly questionable legal positions that the Department has advanced. It is also sadly relevant that Attorney General Holder was held in contempt of Congress by the House for unlawfully withholding Department documents from Congress, the first Attorney General to be held in contempt. Senators will likely want to know if Lynch will commit to being more forthcoming in response to legitimate requests from Congress.

In that regard, senators should also inquire whether the Department will properly investigate credible allegations of wrongdoing elsewhere in the executive branch, including some that are currently being probed, and appoint special prosecutors when appropriate. Such questions were posed to Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus during their Senate confirmation hearings, and their pledges to appoint a special prosecutor to investigate the Watergate break-in led them to refuse an order from President Nixon to fire Archibald Cox—and to resign their offices instead.

All of these issues suggest that President Obama and the current Senate leadership should follow the precedent set by the nomination and confirmation of Alberto Gonzales in 2004-05.  President George W. Bush nominated Gonzales to be Attorney General on Nov. 10, 2004, but the next Senate concluded the confirmation hearings and vote on his nomination. He was confirmed and sworn in as Attorney General on Feb. 3, 2005. Holder has agreed to stay on as Attorney General until his successor is confirmed, so there is no compelling reason to deny the requests made by Senator Mitch McConnell and the next Judiciary Committee Chairman, Chuck Grassley, to allow newly elected senators to participate in the advice and consent process for the next Attorney General.

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