When the king's lawyer becomes the king's judge

NPR reports that Acting Attorney General Todd Blanche faces a confirmation hearing before the Senate this week to lead the Justice Department permanently. What makes this hearing remarkable — and, to a mind attentive to institutions, alarming — is the detail the same report makes plain: Blanche served as the President's personal defense lawyer before assuming this office. He now asks to be confirmed as the nation's chief law enforcement officer.

I have argued, at some length, that the wealth of a nation depends not merely on the industry of its people but on the integrity of the institutions within which that industry operates. Markets are not self-enforcing. A contract is only as good as the court that will hear a breach of it. And a court is only as good as the independence of those who staff it. This is not a point of partisanship; it is a point of architecture. Remove the impartial arbiter, and you do not get a freer market — you get a market organized around access to power rather than quality of produce.

The relationship between attorney and client is, by its nature, one of loyalty. That is its virtue in a private capacity, and I would not diminish it. But the office of Attorney General is not a private capacity. It is the sovereign's instrument for the enforcement of law against all parties equally — the powerful and the powerless, the incumbent and the challenger alike. When the same man who constructed a legal defense for a private client is then asked to direct the prosecutorial machinery of the state on that client's behalf, the question of impartiality is not pedantic; it is foundational.

The Guardian's account of the hearing adds that senators are expected to press Blanche on the handling of cases against the President's political rivals and on the release of certain investigative files. These are precisely the right questions. The test of a justice system is not how it treats the friendless; every system can manage that. The test is how it treats those whose prosecution would inconvenience the powerful. The merchant in my pin factory analogy prospers because he can trust that his contract will be enforced the same way against a great man as against a small one. Destroy that confidence, and you destroy the foundation on which commerce — and civil society — rests.

I do not know, and I will not pretend to know, how Mr. Blanche will conduct himself if confirmed. A man may hold prior loyalties and still discharge a public office with honor; I would not foreclose that possibility. But the institutional design that relies on individual virtue rather than structural independence is fragile design. My own era produced monopoly companies that captured their regulators and used public authority to suppress private competition — the East India Company being the most conspicuous example. The lesson was not that those companies employed villainous men; it was that the structure rewarded villainy and punished honest dealing. Structures matter more than intentions.

The Senate's role in this confirmation is therefore itself an institutional safeguard of the kind I would defend vigorously. The hearing is not theatre; it is the mechanism by which the public, through its representatives, tests whether the officer in question can set aside private obligation and serve the common rule of law. That test should be applied rigorously — not from malice, but from the proper understanding that justice, like the division of labor, works only when each part of the mechanism performs its distinct and bounded function. A lawyer who becomes a judge must cease, in the moment of that transformation, to be a lawyer for any particular client. Whether Mr. Blanche can make that transformation is what the Senate is constitutionally required to determine.