Pseudo-moderate Dems toe party line on DOJ nominations

If there is any administration job for which the Senate should defer to the president’s selection, that job is Solicitor General. The SG represents the U.S. before the Supreme Court, defending the administration’s positions. The administration’s positions should be defended by the lawyer of the president’s choice. Barring truly exceptional circumstances, the Senate should confirm the president’s selection.

President Trump chose Noel Francisco for Solicitor General. Francisco has a distinguished background. He clerked for Judge Luttig of the U.S. Court of Appeals for the Fourth Circuit and then for Justice Scalia. He served the George W. Bush administration in the White House Counsel’s office and later in the Office of Legal Counsel at the DOJ.

After that, Francisco went into private practice at a top law firm. He argued several cases before the Supreme Court, including (successfully) former governor Robert McDonnell’s case and the case in which the Court held that President Obama improperly used the recess appointment power.

Since January, Francisco has been Principal Deputy Solicitor General.

Francisco is a solid conservative, but that shouldn’t disqualify him from defending a (mostly) conservative administration in court. I don’t know Francisco personally, but the people I know who do, including some on the left, like and respect him.

Yesterday, the Senate confirmed Francisco. That’s the good news.

The bad news is that the vote, 50-47, was strictly along party lines. Every Democrat voted against him except for Sen. Menendez who was, shall we say, otherwise occupied.

Among the Democrats voting against Francisco were alleged moderates Joe Manchin, Joe Donnelly, and Heidi Heitkamp.

Let’s compare this vote to the vote on President Obama’s last nominee for the SG position, Donald Verrilli. He was confirmed in 2011 by a vote of 72-16. The Republican split was 26 for, 16 against, 5 not voting.

As I said, Francisco is a solid conservative. Perhaps a more moderate Trump DOJ nominee would fare better with Senate Dems.

Not really. Rachel Brand is the Associate Attorney General. She is a center-right figure and thus, decidedly less conservative than Francisco. Indeed, President Obama appointed her to the Privacy and Civil Liberties Oversight Board, though, to be fair, she did not join in the Board’s recommendation that the NSA’s bulk metadata collection program under the Patriot Act is illegal and should be discontinued.

How did Brand’s confirmation vote go? Essentially the same way Francisco’s did. She was confirmed on a straight party-line vote, 52-46. Manchin, Donnelly, and Heitkamp all voted no.

By contrast, Manchin, Donnelly, and Heitkamp all voted to confirm Justice Gorsuch. What does this tell us? It tells us that in a high profile vote that might affect their reelection chances, these three Red State Democrats won’t oppose a very conservative nominee. On an under-the-radar vote, they will oppose not only a very conservative nominee, but also a center-right one.

It tells me they are phonies.

The interesting question is whether nominees like Francisco and Brand would be blocked if Harry Reid hadn’t done away with the filibuster. Thanks to Reid, Manchin, Donnelly, and Heitkamp can vote against these nominees safe in the knowledge that they will be confirmed anyway. They thus can (1) satisfy left-wing special interest groups and (2) preserve credibility if, down the road, they want to oppose the up-and-coming Brand for, say, a spot on the Supreme Court, but (3) avoid accusations that they actually blocked the nominee.

To actually prevent the administration from filling the SG and/or associate AG position would be another matter. It would give rise to strong charges of obstructionism.

Moreover, the logical extension of this approach would be to force the staffing of top positions with “acting” officials and/or recess appointments, and not just when a Republican is president. It would be another step towards making the U.S. resemble a Banana Republic.

The question isn’t purely hypothetical. It will be raised whenever the Senate is controlled by one party and the presidency by the other.

My guess — and it’s nothing more — is that if the Dems had a Senate majority, they would have blocked Francisco but not Brand. However, given the prevalence of the “resistance” among Democrats, it’s possible they would have blocked both.

It isn’t clear that the Dems have anything against the U.S. taking on characteristics of a Banana Republic, as long as it’s their Banana Republic we’re drifting towards.

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