The first day of confirmation hearings for Loretta Lynch, who could be the first African-American woman to serve as attorney general, included dueling references to the civil rights movement and Selma, Alabama.
Sen. Richard Durbin (D-IL) said he found it “ironic and painful” that states are making it more difficult to vote with voter ID laws and other restrictions at the same time that America watches the movie Selma and celebrates the 50th anniversary of the Voting Rights Act.
Sen. Jeff Sessions (R-AL), on the other hand, used the march to argue against using the term “civil rights” to apply to the struggles of unauthorized immigrants.
“On the 50th anniversary of the Selma march, people were denied, systematically, fundamental rights as citizens of the United States of America,” Sessions said. “But I will just tell you, it’s quite different to demand your lawful rights as an American than to ask for and insist that civil rights apply to those who enter the country unlawfully to have these benefits.”
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Sessions also asked Lynch “who has the most rights,” a citizen or a non-citizen, when it comes to work permits, and asked whether her office would institute a kind of affirmative action by reprimanding employers who hire citizens over non-citizens.
There would be no “greater access” for non-citizens, Lynch replied. Yes, citizenship is a “privilege,” not a right, for those not born here. Yes, she would personally prefer that anyone participate in the workforce regardless of status, but that doesn’t mean there is a federal “right to work” for non-citizens.
Lynch and her questioners touched on numerous issues relating to criminal justice: the problems with police-community relations and mandatory minimum sentencing, the human rights implications of solitary confinement, and the need to reform the juvenile justice system.
But persistent Republican outrage over President Obama’s executive action on immigration ruled the day at Lynch’s hearing, as did the legacy of outgoing Attorney General Eric Holder.
Holder is known for his work on civil rights, including voting rights issues and police abuses, and Lynch is expected to carry on that legacy. But Holder is wildly unpopular with Republicans, and GOP members of the judiciary committee wouldn’t let that be forgotten.
“How do we know you are not going to perform your duties of the office of attorney general the way Eric Holder has performed his duties?” Sen. John Cornyn (R-TX) said.
“I will be myself. I will be Loretta Lynch,” the nominee said, pledging to listen to the committee’s concerns and have an open dialogue with its members, in an implied break from Holder’s more combative style.
Lynch, who was poised and unflappable during the hearing, is the daughter of a Baptist preacher father and a schoolteacher mother who refused to comply with Jim Crow laws that segregated restrooms. Lynch is a member of the Delta Sigma Theta Black sorority, and dozens of her sorority sisters dressed in bright crimson came to the hearing to support the attorney general nominee.
Lynch was twice unanimously confirmed by the Senate to serve as U.S. attorney in Brooklyn, but this confirmation is sure to be more difficult.
In addition to more than one inquiry like Cornyn’s about how Lynch would differ from Holder, Lynch faced endlessly repetitive lines of questioning from Republican legislators about whether she thinks the doctrine of “prosecutorial discretion” applies to the president’s actions to temporarily relieve up to five million immigrants from the threat of deportation.
The Obama administration argues, and Lynch confirmed, that it’s simply not feasible to deport all 11 million unauthorized immigrants, meaning law enforcement has to prioritize the most violent and criminal offenders to be prosecuted and deported.
The president’s executive action is a way of setting those priorities so immigration enforcers don’t waste their time on peaceful, well-established residents.
Republicans argue that by creating a broad category of people who are protected from prosecution, the president has actually undermined prosecutorial discretion by taking away the choice to prosecute people in that category. The administration counters that immigrants are still being considered on a case-by-case basis because people eligible for deferred deportation have to apply for protection and receive a criminal background check.
Lynch repeatedly said in the hearing that she finds the administration’s legal argument for the actions “reasonable.” When pressed by Sessions on whether the action is legal and constitutional, she said, “As I’ve read the opinion, I do believe it is, senator.”
Asked by Sessions about the president’s “amnesty”—a word used repeatedly by the Republican committee members—Lynch said, “With respect to temporary deferral, I did not read it as providing a legal amnesty, but a temporary deferral.”
Peppered by hypotheticals from Republicans about the theoretical limits of executive authority, including a scenario from Sen. Mike Lee (R-UT) about pardoning people who violate the speed limit, Lynch didn’t rise to the bait and repeated the need to look for a “legal framework,” or said that she would need to more closely analyze the facts of the case before responding.
One of the more attention-grabbing hypotheticals came from Sen. Lindsey Graham (R-SC), who took issue with Holder having declined to defend the Defense of Marriage Act in court.
“What’s the legal difference between a ban on same-sex marriage being unconstitutional, but a ban on polygamy being constitutional?” he asked.
Graham and Cornyn both asked about an amicus brief Lynch signed supporting Planned Parenthood in a Supreme Court case about so-called partial birth abortion.
“We were not focused on the actual issue involving the procedure itself,” Lynch said of herself and the other prosecutors who signed the brief. “In fact, it was our concern that as lawyers we did not have medical information … and could be dealing with a situation where a doctor may say something different from what the law might require us to do.”
Lynch’s supporters praised her and scoffed at the Republican lines of questioning as distracting from her capability as a nominee.
Sen. Patrick Leahy (D-VT) called Lynch a “prosecutor’s prosecutor” with “qualifications beyond reproach.”
“No one can assail Loretta Lynch, and no one has,” said Sen. Chuck Schumer (D-NY). “Some are trying to drag extraneous issues … into the fray to challenge her nomination because they can’t find anything in her record to point to.”
“If we can’t confirm Loretta Lynch, then I don’t believe we can confirm anyone,” Schumer said.