Jeb Bush says Republicans should confirm Loretta Lynch as attorney general. Via the New York Times:
“I think presidents have the right to pick their team,” Mr. Bush said, in response to a questioner who asked where he stood on the nomination of Ms. Lynch, now the United States attorney for the Eastern District of New York.
“If someone is supportive of the president’s policies, whether you agree with them or not, there should be some deference to the executive,” Mr. Bush said. “It should not always be partisan.”
Bush’s follow-up point — “The longer it takes to confirm her, the longer Eric Holder stays as attorney general, look at it that way.” — is well taken. But he seems to miss the whole point of the Lynch debate.
It is reasonable to suggest that presidents should have broad discretion to choose the members of their cabinet, and that the Senate’s bar for rejecting a cabinet nominee should be high. The executive branch has its own duties and prerogatives, and it can hardly be expected to prosecute those with vigor if the president’s cabinet is not one he chose, but one forced on him by the legislature.
However, “deference to the executive” requires reciprocity — which the current White House has flatly refused. President Obama has employed his Department of Justice not as an instrument for “faithfully executing” the law as written, but as a legal rubber stamp on unprecedented acts of executive overreach. Many conservatives (and their representatives in Congress — recall that DHS funding vote) believe that the president’s unilateral action — most importantly, his November executive amnesty — are not only hazardous to the nation’s political health and unlawful, but weaken the rule of law as such, because the president’s inability to articulate a limiting principle to his own action would seem to set the stage for rule by fiat in subsequent administrations.
In her confirmation hearings, Loretta Lynch made clear that this does not trouble her. She testified that she would implement the president’s November order — that is, that she would happily aide in his aggressive and unlawful expansion of executive authority.
If anyone is being “partisan,” it is Lynch. Republicans pushing back against her are simply trying to reassert the principle that the president, too, is bound by the law. That is not — or at least should not be — a matter of party loyalty.
Now, all of that said, perhaps Bush thinks this is not the hill on which Republicans should die. They are, after all, not going to force the president to nominate someone who disagrees with him on his immigration order, and (as Bush says) Republican resistance prolongs Eric Holder’s tenure. Fine. But he should say that, then. Instead, Bush made a categorical statement about executive power that suggests a lack of urgency about the president’s imperial approach to the constitution, and that lends credence to the idea that Republicans opposing Lynch are simply being “obstructionists.”
It’s not so. Surely Governor Bush knows that.