We get back to the political attractions of Loretta Lynch here.
The shelf life of this speculation won’t be very long. Obama’s window for a recess appointment closes when Congress gets back in session on Monday, 22 February. After that, we can assume the fully-alerted Senate Republicans will ensure he doesn’t have another opportunity for a recess appointment.
An Obama staffer has said Obama won’t make a recess appointment. We can also assume that that’s a political calculation, rather than a stand taken on principle. A key decision factor for Obama, at every step, will be which option is more politically advantageous in terms of generating heat against Republicans.
Making a recess appointment would appear to mean giving up desirable opportunities in that regard.
But Obama could actually do a lot with a recess appointment, and with no appointee more than with Loretta Lynch.
First, a recess appointment would mean getting the big cases before the Supreme Court in 2016 decided during this session. Lynch could go to work right away, and the docket could proceed on a nine-justices basis. That’s significant: having a ruling, rather than leaving the last appeals-court outcome to stand, is more decisive – in both a political and a judicial sense – and sets a stronger precedent for future cases.
Second, Lynch would reliably vote with the left-wing, anti-constitutional side of the court on every major case. And there are some very big cases before the Supreme Court this session. It’s these cases Obama and his advisors will care about (as opposed to the principle of strong precedent, which they care about only insofar as it paralyzes their political opposition).
Third, Lynch’s appointment would last long enough to prejudice decisions in 2017 too (see Instapundit’s summary, above). That will probably pull in some important gun-rights cases (e.g., dealing with “assault weapons” bans in the states, and “shall issue” for carry permits), if those cases aren’t accepted for decision this year.*
But appointing Lynch would do something just as important, from a political standpoint. It would remove her from her position as attorney general. It would be exactly the move that would allow Obama to keep credibly slow-rolling the prospect of a Hillary Clinton indictment – but without taking it off the table.
For Obama and the Democrats in general, it’s a win-win. Obama keeps hold of his hammer over Hillary, but can intimate, for months, that a Department of Justice in leadership-flux is in no shape to seek low-priority indictments. Indeed, at this late date, Obama may be in no hurry to get himself a Senate-confirmed attorney general anyway.
Keeping their options open with respect to Hillary Clinton has to be a very high priority for the Democrats right now. Saturday will be a watershed test; if she can’t pull ahead of Sanders in South Carolina, where she should naturally have a significant advantage, the Democrats are going to be thinking more seriously about what Plan B is.
Would these benefits be enough to get Obama to play his hand now, instead of waiting, nominating someone, and using the nomination process as a way of trying to make Republicans look bad?
I wouldn’t count it out. A key reason is that Republicans could actually turn the tables on the Democrats by airing issues on Republicans’ terms in the nomination process. Maybe a summer of [score]Ted Cruz[/score] filleting an anti-constitutionalist nominee in high-profile hearings is not what the Democrats would want. If Republicans are keeping their own options open, as Howard Portnoy noted today, it’s not necessarily – or at least not entirely – for reasons of weak-spined fecklessness. Voters don’t think much of the Senate GOP leadership (for good reason), but the SCOTUS nomination process is an opportunity, at a uniquely important time, to make Republican political points. And the nomination can always be defeated.
On the other hand, of course, as I wrote earlier, hearings for Loretta Lynch would be tailor-made for rent-a-thug “protest” groups. For the Democrats, the visual of Black Lives Matter and other groups agitating outside the Republican-held Congress during confirmation hearings, only weeks before the political conventions, might be worth holding out for.
If Obama’s coterie of community-organizer radicals worked hard enough with their meme-planting, they could probably gin up some level of bumper-sticker indignation about opposition to other potential nominees too.
We’ll know by Monday. Again, I’m not handicapping this one either way.
* It’s not clear what would happen to the first challenge to Obama’s executive order seeking to shut down non-dealer gun sales. A Republican president would probably rescind the executive order, for one thing — and probably before the case had gone very far through the courts. For another thing, the lawsuit is against the officeholders Obama and Lynch, who would presumably appeal their first loss in federal court. But a Republican president presumably would not appeal a loss, but instead leave it to stand as the final answer from the courts. So if a Republican is elected in November, even the question of whether Lynch ought to recuse herself from such a case is unlikely to arise.