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Previewing Lynch’s Justice Department

While the Attorney General-nominee isn’t responsible for some of the most contentious actions of her predecessor, she will be responsible for carrying them out.

Published: February 3, 2015

The more Senate Judiciary Committee confirmation hearings I endure the more convinced I am that they tell us more about the predilections of the senators than they do about the views or character of the nominees. Surely last week’s spectacle involving Attorney General-nominee Loretta Lynch illustrates the point. For one long day she was a human piñata as Republican lawmakers took out on her their vast frustration with President Barack Obama and Eric Holder, the man Lynch soon will replace.

The tactic was designed, as Sen. Sheldon Whitehouse (D-Rhode Island) described it on the second day of the hearing, to create “a sound bite factory for Fox News and conspiracy theorists everywhere.” But it wasn’t what Sen. Whitehouse said that was telling. It was what he did. He asked every witness called during the second day of the hearing, including those peddling the vastest conspiracies against Obama and company, whether they supported Lynch’s nomination. They unanimously said yes.

Of course they did. It is beyond reasonable argument even on unreasonable Capitol Hill that Lynch is qualified to lead the Justice Department for the next two years. It isn’t just that she is a “prosecutor’s prosecutor,” to use the phrase uttered by former prosecutor Patrick Leahy, the Vermont Democrat, who by my count now has watched 12 attorneys general come and go. She has the training, the experience and, as we saw last week, the demeanor to handle the job as well or better than anyone who has come before her (see, e.g., Gonzales, Alberto).

But saying Lynch is qualified doesn’t guarantee her a noble, or even a successful, tenure at Justice. The truth is that while she’s isn’t responsible for some of the most contentious actions of her predecessor she will be responsible for carrying them out. This includes immigration, of course, although one suspects the politics of that thorny issue will continue to be out in front of a formal determination of the constitutionality of it — and that ultimately, if there is no political compromise, the federal courts will weigh in on the extent of a president’s authority.

Lynch’s Justice Department also will have to carry on the fight against voter suppression, for example, even as Republican senators proclaim, with no evident hint of irony, that federal lawyers are bullying them over voter identification laws. If you did not know that partisan claims of widespread fraud have been repeatedly undermined by actual evidence you might have sworn, listening to the hearing, that it was the Justice Department, and not state lawmakers in North Carolina and Texas, who were seeking to deny the rights of longtime voters to have their ballots counted.

She will have to move forward, too, with the administration’s cautious approach to marijuana legalization. She does not support it, she told the Judiciary Committee, which was perhaps the least surprising thing that came out of her mouth. Of course she doesn’t support legalization. Neither do the President and Holder. For proponents of legalization, including proponents of the extension of medical marijuana laws in states like Florida, the real question is whether Lynch will press her federal lawyers to harass and harry licensed state dispensers. The good news here, for both sides probably, is that the next big wave of political movement on pot will come in November 2016, during the next general election, and the impacts will be felt after Obama and Lynch are gone.

Will she fight for mandatory minimum sentencing reform as her predecessor did and, if so, is there some way she can be more successful than he was in doing so? Likewise, will she continue to aggressively pursue broad federal clemency policies in the face of the concerns recently vocalized by Sen. Charles Grassley, the Iowa Republican who now chairs the Judiciary Committee? And apart from the politics of that issue, will Lynch figure out a way as a practical matter to get the clemency process moving more smoothly than her predecessor has so that genuine candidates for clemency can actually get their causes heard more quickly?

Will she be as eloquent and forceful as her predecessor in raising the alarm about the systemic failure of our nation to consistently provide its citizens with a meaningful right to counsel? Will she be more aggressive than Holder in taking on Wall Street? Will she having the fortitude to take on the crisis within the federal Bureau of Prisons? She’s on the record as being supportive of the death penalty — she has to be, she’s the nation’s chief law enforcement official and it’s the law — but how will she react when the federal death penalty study, commissioned by her boss, finally is completed and made public?

Everyone takes away from a confirmation hearing what they bring to it. What I took away from the Lynch hearings is that the Justice Department is once again about to be in the hands of a professional prosecutor, who understands the needs to succor favor with the many law enforcement constituencies that make up the universe in which an attorney general operates. That and the fact that there is almost as much cause to be worried from the left as there is from the right which, come to think of it, is probably not the worst thing in the world.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Photo: AP)