- - Friday, November 7, 2014

ANALYSIS/OPINION:

President Obama’s nomination of Loretta Lynch to replace Eric Holder Jr. as attorney general is an opportunity to refurbish the tarnished image of both the Senate and the Department of Justice. Seizing that opportunity will require a deliberative confirmation process and the appointment of an attorney general committed to putting the rule of law before partisan politics.

Democrats have spent the past two years dismantling the independent role the Senate was designed to play when considering presidential nominations. One year ago, Senate Democrats used a parliamentary maneuver to abolish nearly all nomination filibusters. As a result, for the first time in more than two centuries, the Senate minority today has no real say in the confirmation process.

Even so, properly considering a nominee to such a significant position as attorney general requires a full and fair process, something that is particularly hard to do in a post-election “lame-duck” session. As a result of the recent election, the Senate in the 114th Congress will be constituted very differently than it is today. Newly elected senators who, beginning in January, will serve with a new attorney general in office should be able to participate in the confirmation process. It has been nearly five years since Ms. Lynch’s confirmation as U.S. attorney for the Eastern District of New York and she is not well known in Washington.

In recent years, the few nominees confirmed to executive branch positions in a lame-duck session were approved unanimously by voice vote without controversy. They were appointed to help staff lower-profile agencies rather than to lead Cabinet departments. No one has been nominated and confirmed to be attorney general in a lame-duck session since before the Civil War.

Since Mr. Holder has committed to serve until a successor is confirmed, there will be no break in Justice Department leadership and, therefore, no need to rush the confirmation of America’s top law-enforcement officer. In fact, the need for close scrutiny of the Obama Justice Department counsels in favor of a confirmation process that gets it right rather than does it fast.

A new poll finds that two-thirds of Americans are angry with the direction of the country. A further politicized Justice Department will only make that worse. Consequently, consideration of a new attorney general nominee should be guided by one simple imperative; namely, that the rule of law must trump partisan politics.

At the time of his appointment, Mr. Holder committed “to enforce and defend the laws and the Constitution of the United States, regardless of [his] personal and philosophical views on a matter.” Actions, however, speak louder than words.

It is the attorney general’s duty to make any reasonable argument to defend the laws that Congress enacts. Yet the Justice Department refused to defend the constitutionality of the Defense of Marriage Act, notwithstanding reasonable arguments it had made in previous cases that DOMA is constitutional. The attorney general refused to defend the law because he put his personal views above his official duties.

The Obama Justice Department has likewise refused to enforce drug laws that carry sentences it thinks should be changed. Rather than work with Congress to change the law as the Constitution requires, the administration put out an offer of clemency to criminals whose sentences it thinks should have been different. The attorney general has also refused to enforce immigration laws and, according to media reports, is helping prepare for unilateral amnesty for millions of illegal aliens.

President Obama wanted to stack the National Labor Relations Board with union-friendly members without any Senate interference. So, in January 2012, he waited until the Senate adjourned for a few days to make so-called “recess appointments.” Remarkably, the Justice Department’s memo seeking to justify this naked power play was dated after the appointments had already occurred. And the Department’s arguments in support of the appointments were so bizarre that the Supreme Court unanimously rejected them earlier this year and found the appointments unconstitutional.

These are just a few examples, but the pattern is clear. As I have detailed in speeches on the Senate floor, the Obama administration treats the law, not as a rule to be followed, but as an irritant to be avoided when it conflicts with preferred outcomes. The ends, as the saying goes, justify the means.

Yet the attorney general should be the one official in any administration to stand against this temptation. Mr. Holder has failed to do so. That record makes thorough and fair debate about his replacement all the more important.

There is no reason to rig the process to minimize Senate scrutiny. We need only follow the example set during the last administration. President George W. Bush nominated a new attorney general days after the November 2004 election. His party controlled the Senate, but the Judiciary Committee did not hold a hearing until January 2005, when newly elected senators had taken office, including then-Sen. Barack Obama. Democrats today should follow the same process so that Americans can be confident that the rule of law is once again the Justice Department’s top priority.

Orrin G. Hatch, a Republican, is the senior U.S. senator from Utah.

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