Editorial boards in states with Republican senators are condemning their representatives for refusing to allow an up-or-down vote on Loretta Lynch, President Obama's highly-qualified pick to become the next U.S. Attorney General, despite bipartisan support for her nomination.
The Wall Street Journal editorial board is flip-flopping on its acquiescence to President Obama's highly-qualified and noncontroversial nominee for attorney general, and is also calling for Republican senators to go even farther and extend their obstruction of Loretta Lynch to "all of his appellate nominees until he stops abusing his power."
Right-wing media have struggled to find a substantive reason to object to Lynch, an experienced United States attorney who has received bipartisan acclaim for prosecuting terror suspects, human traffickers, and police brutality cases. Lacking any legitimate complaints about Lynch's widely praised record, conservative media figures like National Review's Rich Lowry have instead complained that Lynch, unsurprisingly, agrees with the president on key legal issues. On the March 22 edition of NBC's Meet The Press, Lowry doubled down on this absurd new standard, and insisted that until the president nominates an AG that thinks he broke the law, "so be it -- it's nothing against her personally, I don't care if she's Eliot Ness, the Senate can't do this."
In contrast, the editorial board of the Journal originally recognized the noncontroversial nature of Lynch's nomination, and concluded last November that "Republicans have enough high priorities in the next Congress that the bar should be high for challenging non-judicial nominees who seem to be qualified and honest." But in a March 22 editorial, the Journal switched gears and joined the campaign to prevent a vote not only for Lynch, but for all future circuit court nominees as well:
These columns believe that Presidents deserve their cabinet nominees in nearly all cases, but Mr. Obama's governance presents Congress with a larger Madisonian dilemma.James Madison designed a constitutional system of checks and balances to prevent executive or legislative tyranny. This works best when Presidents and Congresses assert their legal powers but step back from constitutional excesses that lead to judicial intervention or political crises.
The Lynch hold signals that the GOP Senate should consider using its advice and consent power more aggressively -- as a constitutional response to Mr. Obama's unconstitutional abuse of his executive authority. In her confirmation hearings Ms. Lynch defended Mr. Obama's executive order on immigration, which is a fair reason to vote against her, though Mr. McConnell and other Republicans should explicitly repudiate the false racial charge on the Senate floor.
The more fruitful area for resistance may be on Mr. Obama's appellate-court nominees, as Curt Levey recently argued on these pages. Simply refuse to confirm all of his appellate nominees until he stops abusing his power. This would be proportionate political justice after Messrs. Obama and Reid broke Senate rules to pack the D.C. Circuit Court of Appeals last year.
National Review editor Rich Lowry is painting Loretta Lynch, President Obama's nominee to be the next attorney general, as a controversial pick who should "never be confirmed," because she has suggested that the president's executive actions on immigration are lawful. Not only is Lowry's analysis of the legality of the actions contradicted by experts, his erroneous description of such prosecutorial discretion as "executive action" has been debunked, and presidents generally do not nominate chief enforcement officers who promise to go after their sponsor.
Right-wing media have been hard-pressed to find a legitimate reason to oppose Lynch's nomination, instead relying on specious attacks and, in one instance, going after the wrong Loretta Lynch. Lowry's March 18 op-ed for Politico was likewise devoid of any substantive critiques of Lynch's legal positions or her qualifications. Still, Lowry argued that Senate Republicans should "never" confirm Lynch because she believes -- as is the wide consensus among legal and immigration experts -- that the president's executive actions on immigration, a modified Deferred Action for Childhood Arrivals (DACA) and a new Deferred Action for Parental Accountability (DAPA), are lawful.
As all the Republicans opposing her nomination make plain, the issue is her belief that President Barack Obama's executive amnesty is lawful.
This isn't a mere matter of policy or personal preference. It implicates her view of the constitutional order that she will be sworn to uphold. Whether she thinks the executive branch can in effect write laws on its own is a threshold question. Her answer in the affirmative should be disqualifying, no matter how impressive her career has otherwise been, or how historic her confirmation would be.
On the merits, when should Republicans bring her up for a vote -- now delayed because Democrats are filibustering a sex-trafficking bill? Never. When should they confirm her? Never.
The Senate shouldn't confirm any attorney general nominee, from whatever party, of whatever race, ethnicity or gender identification, who believes the president can rewrite the nation's laws at will.
From the March 18 edition of Courtside Entertainment Group's The Laura Ingraham Show:
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From the March 16 edition of CNN's New Day:
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Loretta Lynch, President Obama's pick to replace Eric Holder as the U.S. attorney general, is a highly regarded and well-qualified federal prosecutor who has support from law-enforcement authorities and politicians on both sides of the aisle. But that hasn't stopped right-wing media from mounting a smear campaign to thwart Lynch's nomination. With reports indicating that GOP leadership may yet again block an up-or-down vote on Lynch's nomination, here are some of the most nonsensical arguments against her confirmation and facts that media outlets have missed -- or misrepresented -- about Lynch.
In a rush to find fault in Obama's well-qualified nominee, the right-wing website Breitbart.com managed to attack the wrong Loretta Lynch, not once, but twice. In a November 8 post, Breitbart.com writer Warner Todd Huston claimed that "few are talking about" the fact that Lynch defended the Clintons during the Whitewater probe in 1992 -- probably because it wasn't the same Loretta Lynch who was nominated. After learning of the mistake, Breitbart.com noted at the bottom of the one article that was not taken down, "The Loretta Lynch identified earlier as the Whitewater attorney was, in fact, a different attorney."
Right-wing media have also tried to paint Lynch as a dangerous partisan. National Review's Hans von Spakovsky characterized Lynch as "on the side of radical" because she supported the Department of Justice's legal challenges against strict voter ID laws, which are based on half a century of modern civil rights precedent. Fox Business host Lou Dobbs complained that Lynch's membership in the historically black sorority Delta Sigma Theta was "controversial" because Holder's wife pledged at the same time. It is true: At times, she has defended civil rights, and she once belonged to a well-known sorority.
Senate Republicans turned to some of right-wing media's go-to contributors to turn Lynch's confirmation hearing into what Sen. Sheldon Whitehouse (D-RI) called a "sound bite factory for Fox News." The Republicans' witness list included:
When Sen. Patrick Leahy (D-VT) asked if any of them had a problem with Lynch's nomination for attorney general, none of them raised their hands -- they were there to complain about their favored right-wing media topics, and they did.
Media outlets are reporting that Sen. David Vitter (R-LA) will attempt to block the confirmation of Loretta Lynch as U.S. attorney general on the grounds that the president's "illegal executive amnesty for illegal immigrants would be implemented" by the nominee. However, in reports about the January 28 hearing in which Vitter explained his "huge concern" about the "unconstitutional" executive actions on immigration, both mainstream and right-wing media failed to note that the statutory provision the senator relied on was not only the wrong one, it was out-of-date.
Lynch, the federal prosecutor for the Eastern District of New York, has been widely praised across the political spectrum, and multiple conservatives -- including current Republican senators -- support her nomination. Her credentials are so strong, even right-wing media favorites called to her confirmation hearing by GOP members of the Senate Judiciary Committee agreed she was unobjectionable. Nevertheless, from the moment President Obama nominated Lynch, conservative media have attempted to smear her -- attempts that have been riddled with spectacular mistakes.
Right-wing media are now hitching their opposition to Lynch to the positions of Vitter, who has repeatedly stated he will do his best to block the nominee's confirmation because she does not oppose the president's executive actions on immigration. On her radio show, Laura Ingraham hosted Vitter and agreed with his opposition to Lynch because of her support for "executive amnesty," repeating the debunked myth that Lynch believes there is a legal right for undocumented immigrants to work. Breitbart.com, which has struggled mightily to successfully criticize the nominee, also highlighted Vitter's obstructionist intentions toward Lynch, noting that "Lynch's outspoken support for President Obama's executive amnesty" was in part responsible for the current Republican delay on an up-or-down vote.
Mainstream outlets have reported on Vitter's antipathy toward Lynch as well, based on her support for the "reasonable[ness]" of the justification for the immigration actions. These reports have specifically noted that the senator laid out his case for the illegality of deferred action for certain undocumented immigrants at her recent hearing, where he accused the administration of flouting the law by assigning Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) to the Department of Homeland Security. As Vitter said during the hearing, "I've read the plan, and the plan as I read it is for all of that to be done in the Department of Homeland Security. So my question would be, what is the statutory basis to allow that, when under the statute -- not some order, not some legal opinion -- the statute, the law, word by word it says the attorney general is in the middle of that decision[.]" The Washington Post, for example, included a photo of the oversized copy of 8 U.S. Code § 1182(d)(5) that Vitter displayed as he repeatedly questioned the nominee for agreeing with the White House's legal defense of the immigration actions. Vitter finally remarked, "Well, again, I'll have to be following up for the fourth time, but that'll be a central question. The plan is not for the attorney general to be in the middle of this at all. The statute says that 'the attorney general is.' Why aren't we following the statute?"
Unfortunately, both right-wing and mainstream media reporting on Vitter, the January 28 hearing, and his opposition to Lynch have failed to note that Vitter's questioning was referring to the wrong part of the law, which has since been superseded.
National Review's editorial board is arguing that Senate Republicans should "resist" Loretta Lynch's nomination to become the next U.S. attorney general because the board refuses to believe that "amnesty" is not forthcoming, and it falsely claims Lynch thinks there is a constitutional right for undocumented immigrants to work.
On January 28, Lynch appeared before the Senate Judiciary Committee, where questions from Republican members focused primarily on whether Lynch believes that President Obama's immigration action was legal. Legal experts agree that the action -- which temporarily defers deportations for some undocumented immigrants who meet a series of qualifications and pass a criminal background check -- is a lawful exercise of the president's authority to use prosecutorial discretion to prioritize some deportations over others.
Nevertheless, right-wing media are playing up questions from Republican senators who believe that the immigration order is unconstitutional and attacking Lynch for her responses, even if they don't understand what she said. National Review took it further in a January 29 editorial, claiming that confirming Lynch would be "an abnegation of [Senate Republicans'] November mandate and, even more important, their constitutional duty."
The editorial also claimed that Lynch had "evaded questions" from Sen. David Vitter (R-LA) about whether Obama's "amnesty order" will allow law-enforcement agencies to make decisions case by case. The editorial went on to take Lynch's comments about whether undocumented immigrants have the right to work out of context and ignored her subsequent clarification, calling her remarks "constitutionally insupportable":
In Senate confirmation hearings held this week, Ms. Lynch has evaded questions from Louisiana senator David Vitter about whether the amnesty order will actually be carried out on a "case-by-case basis," as even the administration's own lawyers say is required by law, and from Utah senator Mike Lee and Texas senator Ted Cruz about whether a future president could, under President Obama's rationale of "prosecutorial discretion," decline to enforce tax or labor or environmental laws. But among the things she has stated unequivocally is her belief that the president's executive order is "legal and constitutional." She even went further, telling Alabama senator Jeff Sessions that "the right and the obligation to work is one that's shared by everyone in this country regardless of how they came here." Such an assertion is both ahistorical and constitutionally insupportable. But it is the president's own alarming view, and simply confirms that Ms. Lynch, like Eric Holder, would lend the Justice Department's endorsement to the president's lawlessness.
As even Fox News host Megyn Kelly has admitted, the executive action is not amnesty -- it is an exercise of prosecutorial discretion, common in all forms of law enforcement and not just in the context of immigration. According to Kelly, the word "amnesty" is "a hot-button term that the right uses to sort of get people upset."
From the January 29 edition of Fox News' The O'Reilly Factor:
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From the January 29 hearing of the Senate Judiciary Committee:
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From the January 28 edition of MSNBC's The Rachel Maddow Show:
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Breitbart.com is incorrectly claiming that Loretta Lynch "undercut the legal argument" supporting President Obama's executive action on immigration, when in reality she did no such thing.
On January 28, Lynch appeared before the Senate Judiciary Committee for her confirmation hearing to become the next attorney general of the United States. Lynch is widely considered by people on both sides of the aisle to be a well-qualified pick for the post, but she still faced tough questions from Senate Republicans who, as The New York Times put it, wanted "assurances she would break from some of the practices" of current Attorney General Eric Holder.
One line of questioning in particular centered around Lynch's thoughts on the legality of Obama's recent executive action on immigration that will defer deportation proceedings for some undocumented immigrants. Legal experts agree that the president's action, which will provide temporary administrative relief for certain undocumented parents of U.S. citizens or lawful permanent residents who pass a background check, is "clearly within his discretionary power." Immigrants whose deportations are deferred under this form of prosecutorial discretion are then eligible to apply for work authorization permits and driver's licenses (depending on the state) -- a benefit that was not introduced by Obama, but rather is permitted under the Immigration Reform and Control Act of 1986 and the Real ID Act of 2005, respectively.
Breitbart.com, a site that once spectacularly confused nominee Lynch with a completely different Loretta Lynch in its rush to smear her qualifications, made yet another error in reporting on the confirmation hearing. A January 28 post on Breitbart claimed that Lynch "[p]erhaps by accident" had "undercut the legal justification the president has given for his executive amnesty for millions of illegal aliens during her confirmation hearing." Aside from incorrectly defining the president's immigration actions as "amnesty" -- a mistake that other conservative media figures like Fox News' Megyn Kelly have avoided -- Breitbart homed in on an exchange between Lynch and Sen. Mike Lee (R-UT), who asked about limitations on using prosecutorial discretion to prioritize deportations. Breitbart quoted Lynch's response:
I think that if a prosecutor were to come to the view that they had to prioritize one crime over another, you would always still want to retain the ability -- even if it was an area that was not an immediate priority -- if for example it became one. Because if a particular neighborhood was being victimized, or again to use your issue of speeding, there were deaths resulting from that. You would want to have the ability to, if you could, take resources and focus on that issue. It might not be the first priority but you would want to have the ability to go back and deal with that issue.
Breitbart went on to argue that, in her response, "Lynch effectively admits that what Obama has done with executive amnesty -- providing legal documentation and work permits for millions of illegal aliens, thereby legalizing their status in the United States -- far exceeds any reasonable definition of prosecutorial discretion. She also said that prosecutors should keep the door open to prosecuting an illegal action that isn't currently a priority if it becomes one eventually. So even if illegal immigration isn't a priority right now for whatever reason, prosecutors need to be able to go after that crime later."
What she said does not "undercut" the policy at all. By definition, the executive actions (which are reversible themselves) that grant temporary administrative relief by deferred action "keep the door open" and allow law enforcement "to go after that crime later," as Lynch stated. The hint is in the name of the actions, which Breitbart did not cite: the "case-by-case" Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) programs.
Given the fact that it would be impossible for law enforcement to deport every person currently living in the United States without the appropriate documentation, it is essential to prioritize some removals over others. Lynch's comments do not undermine the administration's position, which she said was "reasonable" -- they simply explain how prosecutorial discretion, such as DAPA and DACA, works in practice.
The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.
Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.
Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."
Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."
Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:
KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.
Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."
Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:
Former CBS reporter Sharyl Attkisson has been invited by Republicans to testify at a hearing on President Obama's attorney general nominee, Loretta Lynch. Attkisson, who writes for the conservative Heritage Foundation's Daily Signal and has been praised by Fox News and Congressman Darrell Issa (R-CA) for her shoddy reporting, is currently involved in a lawsuit targeting the Department of Justice.
According to a report on Monday by The Hill, Senator Chuck Grassley (R-IA) announced that Attkisson "will testify during this week's Senate Judiciary Committee hearing for Loretta Lynch, Obama's nominee to replace Eric Holder as attorney general."
Attkisson recently named outgoing Attorney General Eric Holder and the DOJ in a $35 million lawsuit alleging that federal officials hacked into her computers and phones from 2011 to 2013. Although CBS News confirmed that Attkisson's then work-issued laptop had been compromised by an unknown source, Attkisson's claim of "some government tie," suggesting the hack was conducted by government officials, has been called out for egregious inconsistencies. Nevertheless, Attkisson went on to claim that the alleged government hack had caused ongoing electronic malfunctions with the phone, television and cable systems in her home.
But in fact, computer security experts said video released by Attkisson as evidence of a hack on her personal computer actually appeared to show her computer "malfunction[ing]," likely due to a stuck backspace key. Attkisson subsequently went on to walk back claims that the alleged hack affected her other home technology. Attkisson admitted that the issues "may in the end have nothing to do with the intrusion" into her work computer.
The Justice Department has denied Attkisson's allegations and a DOJ spokesperson told Business Insider in May 2013 that "to our knowledge, the Justice Department has never 'compromised' Ms. At[t]kisson's computers, or otherwise sought any information from or concerning any telephone, computer, or other media device she may own or use."
But despite her legal fight with the DOJ, the Senate Judiciary Committee, led by Iowa Republican Chuck Grassley, called Attkisson to speak on a panel of witnesses that include Catherine Engelbrecht, the president of the voter ID group True the Vote, a conservative media favorite that actively hypes virtually non-existent voter fraud. Attkisson was praised by Issa for her shoddy reporting, which has in the past been based off misleading leaks from Issa's committee. She has also been hailed as a great reporter by many of Fox News' on-air personalities, some of whom have based their Benghazi coverage on her misinformation.
Conservative media had worked to cast Murthy as a radical for his uncontroversial stance that gun violence is a public health issue and criticized his supposed lack of qualifications.
The conservative media attacks against Murthy began in early March. Coverage of his nomination focused on his past acknowledgement that gun violence affects public health, which conservative media spun as evidence Murthy is obsessed with gun regulations. (Murthy has actually said his focus as Surgeon General will not be on gun violence, but rather obesity.)
Fox contributor Katie Pavlich claimed that Murthy is "rabidly anti-gun" and "must be stopped," and Fox & Friends co-host Peter Johnson, Jr. argued that, if confirmed as Surgeon General, Murthy would make the examining room about "about party registration or about gun registration" rather than medicine. Fox hosts also worked to downplay Murthy's considerable accomplishments and suggested that he was unqualified to be "our nation's doctor" because "he hasn't done much in his career yet," all while arguing he would turn the Surgeon General role "into a hyper-partisan position." These arguments became the basis for an extended smear campaign on Fox News and conservative blogs.
In fact, Murthy's stance on firearms is common within the medical community. The American Medical Association (AMA) agrees that gun violence "has reached epidemic proportions" and has argued that the medical profession carries an obligation to combat gun violence. The Institute of Medicine has also advocated for a "public health approach" to fight gun violence. Furthermore, Murthy's credentials were endorsed by a broad array of health care groups including the American Public Health Association, American Academy of Pediatrics, American Cancer Society, American Diabetes Association, American Heart Association, and Trust for America's Health.