Let's Go. We Can't. We're in the Senate.
In 1960, the great theater critic Martin Esslin argued that the work of several avant-garde European playwrights -- including Samuel Beckett, Eugene Ionesco and Arthur Adamov -- could be unified under the category of "theater of the absurd." Their plays, Esslin explained, “confront their public with a bewildering experience, a veritable barrage of wildly irrational, often nonsensical goings-on.” The theater of the absurd is characterized, he said, “by the open abandonment of rational devices.”
Beckett’s "Waiting for Godot" is the genre's most enduring example. Here's how it ends:
Vladimir: Well? Shall we go?
Estragon: Yes, let's go.
They do not move.
The stalled nomination of Loretta Lynch, President Barack Obama’s choice to be the next attorney general, has started to look like something straight from Beckett's play.
Senate Republicans will not allow a vote on Lynch’s confirmation, even though no one doubts her qualifications or her character. A principal reason for the delay is her refusal to repudiate as illegal Obama’s executive action on immigration.
Asked about the conclusion previously reached by the department that the president has chosen her to lead, Lynch answered, “I thought the legal opinion was reasonable.” She added, “I did find it to be responsible that we prioritize removal, particularly those who are involved in violent crime, terrorism, recent crossers.”
Prominent Republicans have seized on these remarks as a justification for rejecting Lynch. Acknowledging that “she’s probably a pretty fine person,” Senator John McCain of Arizona said, “But when she said she thought that the president’s executive orders were ‘reasonable,’ I can’t support her.”
Senator Roger Wicker of Mississippi announced that Lynch “won’t be confirmed with my vote,” because she “has basically taken the position that the executive branch has unlimited, almost czarlike powers.” Senator Deb Fischer of Nebraska said that she would oppose Lynch because she “was really disturbed by her comments at the hearing with regards to her support of the presidential actions.”
Do these senators actually believe that in order to be confirmed, a nominee for the position of attorney general must announce, in public, that one of the president’s most significant domestic policy initiatives is illegal? Do they mean to suggest that the president can't put in place an attorney general who doesn't believe, and will not say, that her future boss recently violated the law?
It’s true that the Senate can legitimately take a strong stand when asked to confirm federal judges, who have life tenure and don't work for the president. But by both tradition and common sense, any president is entitled to substantial leeway in choosing his own staff -- so long as his choices pass basic tests of character and competence. Whether Republican or Democrat, the president may select cabinet officials who tend to see things as he does -- and who will have the good sense not to air any exceptions in a Senate hearing.
To be sure, we could imagine extreme cases that would test this proposition. If a president engaged in indisputably unlawful actions, without even minimal legal justification, the Senate would be entitled to stand firm against an attorney general nominee who supported those actions. But in the case of Obama's policies on immigration, the Office of Legal Counsel, which operates under the attorney general, has offered a detailed explanation for its conclusion that no law is being violated. Whether or not that explanation is ultimately convincing, it is certainly within the bounds of the reasonable.
There is a much broader point here, and it bears on the performance of the Senate in the coming years and beyond. In both domestic policy and foreign affairs, Republican senators have been trying to press Obama nominees to distance themselves publicly from the Obama administration. Some senators have made it clear that they will not vote to confirm nominees who refuse to denounce the positions of the president who chose them.
If members of Congress disagree with those positions, they have legitimate tools at their disposal, including lawmaking and appropriations, by which to express their displeasure. But refusing to confirm otherwise qualified nominees? That’s bewildering, wildly irrational -- and absurd.
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Cass R Sunstein at email@example.com
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