- - Wednesday, January 21, 2015

ANALYSIS/OPINION:

Loretta Lynch, the president’s nominee to replace Eric Holder as the U.S. attorney general, faces question-and-answer time next week, and this will be the first opportunity for the new Republican majority to demonstrate that there’s a new and more just world on Capitol Hill. She will not necessarily face a hostile panel of the Senate Judiciary Committee, nor should she. She is a known quantity as U.S. attorney for the Eastern District of New York, first appointed by President Clinton and reappointed by President Obama.

The senators already know a lot about her legal background. What they should be most curious about is how she expects to restore public confidence in the Justice Department, confidence that has been badly abused by Mr. Holder. Sen. Chuck Grassley of Iowa, the chairman of the committee, has scheduled two days of hearings and says he expects her to be closely questioned. “My approach as chairman is to allow for as many questions as necessary,” he says, and that may require more than two days of testimony.

Ms. Lynch is a tough prosecutor, more lawyer and prosecutor than politician, and thus very different from the man she is to replace. Some senators may be inclined to give her a pass simply to rid the Hill of Mr. Holder, who has been often rude and uncooperative and not generally popular with the Senate. Sen. Orrin Hatch of Utah is said to have told colleagues that confirming her quickly might be the best way to send Mr. Holder to private practice, where he can do no further harm to the public.

Ms. Lynch has spent considerable time already with Republican senators and has made a good impression, though she has not shown her hand on the crucial matter of the legality of some of the president’s executive orders. She must answer questions about her views of the president’s overreach to impose immigration “reform” without respect for Congress and its constitutional right to have something to say about it. The senators for their part must be careful, considerate and precise with their questions and resist the temptation to score political points.

She should be closely questioned about her views of civil asset forfeiture laws, which enable government confiscation of private property without bringing charges against the owners of such property. Does she support the reform of these laws? Her record on this as a top government lawyer is not reassuring. What does she think of prosecutors who ignore their legal obligation in criminal cases to turn exculpatory evidence over to the defense? Many prosecutors ignore the law to build a gaudy record of convictions on which to run for office. The actual guilt of defendants is sometimes sacrificed to prosecutorial ambition. The infamous prosecution — persecution may be a more accurate word — of the late Sen. Ted Stevens of Alaska is an abiding shame of the government. Federal prosecutors withheld exculpatory evidence, and an independent judicial investigation led to condemnation of the department. The guilty parties were protected by Mr. Holder, who concluded that injustice was a small price to pay for protecting him from scandal. Several of the abusive prosecutors are still at work under him. What would she do about them?

Ms. Lynch should be asked whether she will respond to congressional requests for information needed for congressional oversight of the department. Mr. Holder refuses to comply with valid subpoenas in the legitimate pursuit of rogues in his department.

Ms. Lynch may well be confirmed and perhaps she should be. But the Judiciary Committee has a responsibility to ask, and demand if necessary, for her to reassure them, and the public, that she will not run the department as Eric Holder has done. She must promise to remember that “justice” is more than a word etched on the side of a building.

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