Loretta Lynch  
Shot Down by a Republican Senate

March 28, 2015

Loretta Lynch with President Barack Obama

Loretta Lynch faces discrimination, although not blatant discrimination.  Ms. Lynch has been subjected to subtle discrimination--that is, discrimination in which judgements about women and minorities are based on either (1) standards different from and usually more onerous than those applied to white males or (2) distorted perceptions of their behavior.  Minorities may have to work harder than their white counterparts to obtain the same rewards and the same behavior considered intolerably aggressive by women may be considered merely proactive by men.  In either event subtle discrimination involves a myopic focus on the rewards obtained or the behavior that results from a perception without consideration of the basis for reward or underlying perception. 

As an example of using different standards for women, consider the testimony in the discrimination case venture capitalist Ellen Pao brought against her former employer, Kleiner, Parker, Caufield, and Byers.  Ms. Pao’s white male partners indicated that their major reason for not promoting her was her failure to become a “thought leader.”  The company’s management defined “thought leadership” as being expert in some investable area.  Other managers in the firm concurred and added that “thought leadership” was important because it was the only way to be effective.  However, other testimony showed that “at the time she was passed up for promotion, Ms. Pao had generated more revenue at Kleiner Perkins than any of the other men who were promoted in 2012.” 

Ellen Pao

White males may also have distorted perceptions of women and minorities.  White male policemen shot and killed 12-year old Tamir Rice who was playing with a toy gun in a Cleveland park. The policemen claimed that the boy looked 20 years old and the gun looked like a real hand gun. 

Tamir Rice

The failure to schedule a vote on Ms. Lynch’s confirmation following her hearing on January 28 or in early March could be explained as legislative maneuvering that numerous white nominees have faced. By mid-March Republicans announced that they intended to hold up Ms. Lynch’s vote until Democrats had agreed to support an anti-trafficking bill in which fines collected from traffickers could be used to fund abortions.  (Democrats balked at extending the prohibition already in place against taxes being banned for abortions being extended to fines.)  Withholding a vote in one area to garner support for an unrelated piece of legislation is neither new nor discriminatory. 

Many of the Republican Senators on the Judiciary Committee have used Ms. Lynch’s refusal to disavow the President’s Executive Order on immigration to justify their opposition to her.  For example, Senator Jeff Sessions (R) of Alabama asked if Ms. Lynch supported the Executive Order and would she be as close Obama as Holder.  Ms. Lynch responded that it was not her role to support or not support the order, but rather to determine if the order outlined a legal framework for the actions called for by the order; she said there was not a framework for some of the actions.  Senator Cornyn (R-Texas) asked Ms. Lynch if she would follow in Holder’s footsteps and “be willing to tell your friends ‘no’ if the law required it.”  Ms. Lynch said that she would be willing to tell not just her friends but also her colleagues “no” if the law required it. Prior to the hearing Louisiana Senator David Vitter (R), for example said that Lynch was in lockstep with Obama and he would oppose Lynch unless she promised to obstruct President Obama’s Executive Order.  

John Cornyn

Most nominees, however, are seldom, if ever, expected to disavow support for key policies of the President who has nominated them.  Senator McCain (R-Arizona) and Chair of the Senate Armed Services Committee has frequently criticized President Obama’s Mideast policies.  Yet, when Ash Carter, President Obama’s nominee for Secretary of Defense testified at his confirmation hearing, that except for some aspects, he supported the President’s plans, he was confirmed a week later.  Although Ms. Lynch identified some aspects of President Obama’s Executive Order with which she disagreed, she was opposed for being too deferential to President’s Obama’s policies. 

Moreover, most Republican Senators perceive Lynch to be the same as Attorney General Holder, although Lynch said several times that she would be independent, just as Ash Carter did.  Nonetheless, these Republican Senators still assumed she would be personally close to the President and not just his appointee.  As a result of that closeness, she would be deferential to him.  Why would Republican Senators perceive Ms. Lynch to be closer to the President than Ash Carter?  Like the President, Ms. Lynch is Harvard trained lawyer, although unlike the President, Ms. Lynch has been a career prosecutor and practicing attorney.  The primary characteristics they share are being smart, extremely capable, and, of course, African American.  

Republican Senators still assumed she would be personally close to the President and not just his appointee. 

While some pundits note that Republican antipathy to Eric Holder is so great, they should be eager to replace him as Attorney General, these pundits seem to perceive her to be the same as Mr. Holder.  Republicans will not defy a major part of their constituency and vote for what they and their constituents perceive to be another Eric Holder.

There are two possible results from the delay for Ms. Lynch.  First, her standing as an Attorney General may be later diminished.  Second, she may not be confirmed.  If either of these two events occur, then Lynch will have suffered from additional subtle discrimination—even though many will claim they don’t see evidence of any type of discrimination. 

Republicans simply will not defy a major part of their constituency, and vote for what they and their constituents perceive to be another Eric Holder.

What is certain, however, is that the use of shifting standards while possibly useful for one group to use against members of another group, can only serve to undermine the legitimacy of standards.  As a result, the institutions upheld by those standards are injured.