The machinery of consent must do its work

The New York Times reports that Senate Democrats are pressing Todd Blanche — nominated to serve as Attorney General — to account for subpoenas once issued to that same newspaper, then withdrawn. I will not pretend to know the precise contents of those subpoenas or the exact sequence of events that led to their withdrawal; the dossier before me supplies only the lead. What I can do is examine the structure — and the structure gives me serious pause.

First: the office itself. The Attorney General is not the President's personal advocate; he is the officer sworn to enforce the law of the United States as written by Congress and as bounded by the Constitution. The moment that office is perceived as a weapon aimed at critics rather than a shield held over the law, the separation of powers begins to corrode. Whether Blanche understood his role in those terms is precisely what the Senate has a constitutional duty — under Article II, Section 2 — to probe before it consents to his appointment.

Second: the press and the First Amendment. The First Amendment does not grant newspapers an immunity from all legal process. But a subpoena aimed at a publication's records is a powerful instrument, and its use — or misuse — by a federal executive to compel disclosure from a critical press threatens the very nervous system of free government. I wrote in the Virginia Remonstrance of the danger of allowing any magistrate to reach into the domain of conscience and expression; a subpoena to a newspaper is a cognate threat. The fact that these subpoenas were withdrawn does not extinguish the question; it sharpens it. Why were they issued? On whose authority? Toward what end?

Third: the advise-and-consent mechanism is not theater. I have heard it said in later ages that Senate confirmation hearings have become mere pageantry. They should not be. The Senate's power to withhold consent is the very lever by which the legislative branch checks executive appointments. Demanding answers from Blanche before a committee vote is not obstruction — it is the machinery operating as designed. If the nominee cannot, or will not, explain the department's conduct during the period he was involved, that silence is itself evidence the Senate is entitled to weigh.

The structural question is this: Does the arrangement the Senate is being asked to ratify — an Attorney General who may have directed or acquiesced in subpoenas against a free press — strengthen or weaken the balance among the branches? A Justice Department that regards itself as answerable only to the President, and not to the law, is precisely the kind of consolidated executive power the framers built the Senate's confirmation role to check. The committee vote is not the end of the matter; it is the mechanism's first test. That mechanism must be allowed to work.