I opposed Loretta Lynch’s nomination to be Attorney General because I found her congressional testimony lacking on fighting the politicization of the federal prosecutorial function that was the hallmark of Eric Holder.

I was concerned that by confirming Lynch, we would be elevating someone who would not resist the urge to impose political views in the guise of law enforcement and prosecutorial discretion.

Not being Eric Holder is not enough – vote No on Loretta Lynch

It pains me to come to the conclusion that Loretta Lynch should not be confirmed as our next Attorney General.

As I wrote before, Lynch was a law school classmate. While we were not “friends,” we were acquaintances. I have only good memories of her, and it does not surprise me that she has accomplished so much….

Holder leaves behind a tattered and disgraceful legacy that will take a strong new Attorney General to clean up.

Lynch could have been that person to clean up Holder’s mess and put the DOJ back on the non-political path….

At that critical moment when Lynch could have convinced us that she could do what Holder never could, put law enforcement above political policy, Lynch blinked.

The issue was Obama’s executive action on immigration….  Obama’s executive immigration action is politics, and political policy. No part of it in reality has to do with better enforcing existing law — it is a way around the legislative power which is delegated to the Congress.

The Obama executive action did not start to better law enforcement, but it is using law enforcement principles such as prosecutorial discretion as cover for the politics.

Yet when Lynch was asked how she would assess Obama’s immigration policies as the chief law enforcement officer of the United States, obligated to enforcement of the law, she obfuscated and demurred. Prosecutorial discretion, when applied as Obama and Holder have as cover for politics, knows no boundaries, something Lynch could not bring herself to admit….

The testimony and questioning was painful to watch, particularly when Lynch agreed to elevate illegal immigrants to legal work status as a right, notwithstanding existing law. (Power Line has key transcripts) ….

Ultimately, Lynch did what Holder would do, mask political policy of the Executive Branch as law enforcement policy of the Department of Justice.

That tendency has now played out with respect to transgender rights in two key respects. First, with regard to North Carolina’s so-called bathroom law, and, second, with regard to school policies on bathrooms and other school functions.

As Hans Bader notes, there is no federal law protecting against discrimination on the basis of gender identity. Whether there should be is a completely different matter, and even if there were, it would be a further reach to hold that providing a separate non-gender bathroom (in addition to men’s and women’s bathrooms) would be deemed discriminatory.

This interpretation is very strange, because one’s internal gender identity is not always the same thing as one’s sex. That’s why transgender people go to the trouble of getting a sex change: they are not the sex they want to be.

It’s also why legislation has been proposed in Congress to expand federal antidiscrimination laws to cover gender identity, rather than just sex. Congress has declined to pass such legislation, but now, the Obama administration has effectively legislated on its own, by decree, in violation of the Constitutional separation of powers, which vests legislative power in the legislative branch, not the executive branch….

I am sympathetic to many requests made by transgender students as a policy matter. It makes more sense for a male-looking transgender student to use the boy’s restroom, or a female-looking transgender student to use the girl’s restroom, regardless of their biological sex. Requiring otherwise would likely increase, rather than reduce, student discomfort. The last thing we need is bathroom police. But federal bureaucrats only have jurisdiction to enforce Title IX, not their own notions of public policy. Title IX does not mandate national central planning for bathrooms.

Instead, the Obama administration argues for the extension of federal law prohibiting discrimination based on “sex” to cover self-described gender identity. And the administration is using its executive powers to accomplish that extension of the law throughout the federal government and by use of executive power.

Yet, when Lynch gave a press conference announcing a Justice Department lawsuit against North Carolina, Lynch acted as if there was no dispute that federal law prohibits gender specific bathrooms on the basis of it being discrimination based on “sex”.

Lynch compared separate bathrooms based on gender to Jim Crow laws, threatened federal funding even while the lawsuit was pending, and mostly gave a political speech as to what she thought was right:

I was against Loretta Lynch’s nomination because her congressional testimony suggested she would be a politician in the mold of Eric Holder.

She just proved me to have been correct.