The Senate’s constitutional duty is to check presidential abuse of power. Our job in assessing nominees is to strive for consistency.
I’ve said publicly that I can’t support President Trump’s nomination of Acting Attorney General Todd Blanche to become the Senate-confirmed attorney general. I wish it were otherwise. I had hopes for Blanche at the start of Trump II, which is why I supported his nomination as deputy AG. But, to repeat what I’ve said a few times (including in today’s earlier post), my objection is mainly to Trump’s abuse of the Justice Department. The Senate’s duty is to check presidential abuses of power, not encourage them by rewarding his complicit subordinates with promotions.
I’ve gotten the usual, knee-jerk, uninformed grief from some quarters because I supported the confirmation of Merrick Garland when President Joe Biden nominated him to be AG. Given today’s ultra-tribal politics, that’s to be expected, but let me say the following.
I obviously feel strongly about the Justice Department, having spent much of my professional life as a federal prosecutor. My default position on DOJ nominations is that, if the nominee is qualified (in terms of credentials and character) and hasn’t got a record indicating that he or she will undermine the Justice Department’s mission of fair, evenhanded law enforcement, then I support the nomination.
Unlike judicial nominations, executive appointees carry out the president’s policies at the president’s pleasure, so I don’t oppose appointees just because they are nominated by a president whom I voted against and whose policies I oppose. An important caveat: If it is clear that the president is going to abuse law enforcement power, I think it’s the Senate’s duty to oppose the president’s nominees, no matter how well qualified, unless and until the president relents. Congress must check executive lawlessness because, in our system, no other institution can. The president is in charge of the executive branch; therefore, how the president steers the DOJ is a weightier factor than the merits or demerits of any particular nominee.
At the time of Garland’s nomination, Biden hadn’t been president yet. For his part, Garland stood not only as a well-regarded federal appellate judge; I had known him, when I was prosecuting terrorists in the Nineties, as a top Clinton DOJ official who was a sound voice for law enforcement and national security. In fact, President Barack Obama had nominated him for the Supreme Court on the reasonable calculation that he was a Democrat whom Republicans might vote to confirm (a calculation that was wrong not because of Garland but because of the possibility that, if the vacancy were kept open, a Republican might win the 2016 election and then appoint an originalist conservative — which is what happened).
When Biden nominated him, Garland hadn’t taken any of the abusive actions he would later take as AG — and when he took those actions, I was a consistent, aggressive critic. If Garland had taken those actions as an acting AG, I would have opposed any subsequent nomination of him to be the Senate-confirmed AG. Admittedly, my hopes for Biden’s steerage of the DOJ were dim given the antics of the Obama DOJ when Biden was vice president. But Biden had run in 2020 as the moderate Democrat who would keep the radical left in check, and he was at least making the right sounds about keeping politics out of law enforcement. I saw the Garland pick as a signal that the DOJ would be run by a seasoned institutionalist; I didn’t expect to agree with Garland on policy (he was not a hard leftist but he was a Clinton Democrat), but I hoped he’d abide by DOJ rules and rein in the subordinate crazies installed by Biden to satisfy his left flank.
That’s not the way things went, but no one could have been sure of that at the time. I’m pretty good at acknowledging error when I commit it. (The DOJ once expected nothing less of prosecutors.) Yet I don’t think that having a favorable view on Garland’s nomination was an error, even if he turned out to be very disappointing.
For similar reasons, after opposing President Trump’s reprehensible (and quickly abandoned) nomination of Matt Gaetz for AG, I was supportive of his nominations of Pam Bondi as AG and Todd Blanche as deputy AG — notwithstanding my reservations that Blanche’s prior representation of Trump as a private lawyer would create conflicts (I thought that was worrisome but not disqualifying).
By contrast, despite the overwhelming support he had from Republican Senators and a number of my friends in the conservative legal commentariat, I opposed Eric Holder’s AG nomination, by Obama, because of Holder’s complicity — as deputy AG — in the corrupt pardons at the end of President Bill Clinton’s administration. And I believe, despite his impressive qualifications, that Holder’s tenure as Obama’s AG reflected the same flaws he’d exhibited in the pardons episode. (He was the first AG to be held in contempt of Congress; the House vote of 255–67 was overwhelming and bipartisan.)
Blanche is a highly experienced former Southern District of New York prosecutor. As a fellow SDNY alumnus, I hoped he would be a solid deputy AG — just as I hoped that Trump would see the wisdom in being the president who buried lawfare rather than became its most vindictive, unabashed practitioner. That’s not how it has worked out. To my mind, the problem has more to do with the president than the acting AG, but it’s still a joint problem.
I believe that Blanche is instinctively pro-law enforcement. That appeals to me. But when a president is prone to undermine the Justice Department’s mission, then I want an AG who is strong and scrupulous enough to say, “I can’t be a part of this. If you do this, I’m out of here.” Much as I wish he were, Blanche is just not that guy.