WASHINGTON — Loretta Lynch, poised to make history as the nation’s first African American female attorney general, has been caught in a bipartisan political trap that has left her nomination lingering for a historically long time.
She has been a near-certain lock to win confirmation since her nomination hearings went smoothly in late January, but that’s not made her path to running the Justice Department any easier.
On Thursday, Senate Democrats decried the languishing pace of the confirmation, suggesting that Republicans had delayed her bid as part of their ongoing attack on President Obama’s immigration policies.
“It makes no sense at all,” said Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which approved her nomination last week.
Sen. Ted Cruz, R-Texas, a likely contender for the 2016 presidential nomination, has made the Lynch nomination a flash point on Obama’s executive actions that would give temporary protections to more than 4 million illegal immigrants. Many Republicans have followed that lead, including the No. 2 GOP leader, Sen. John Cornyn, R-Texas, who cited the immigration orders in his opposition and called Lynch “the chief advocate for the president’s policies as attorney general.”
While no floor debate has been scheduled yet, GOP aides pointed Thursday to comments last month from Senate Majority Leader Mitch McConnell, R-Ky., promising that Lynch would get a floor vote. Under new confirmation rules that Democrats imposed in 2013, requiring just simple majorities to clear most presidential nominees, Lynch appears to have more than 50 votes needed.
Three Republicans — Sens. Orrin Hatch of Utah, Lindsey Graham of South Carolina and and Jeff Flake of Arizona — already voted for her in committee, and Sen. Susan Collins, R-Maine, has announced her support, which would give Lynch 50 votes, counting the 46 members of the Democratic caucus. With a tie-breaking vote from Vice President Biden, Lynch has the necessary support to win.
But Senate Democrats share a large portion of the blame in the delays to Lynch’s nomination.
On a conference call Thursday, Leahy made a rare confession about how Democrats and the White House had mistimed this process. “I wish the nomination had been made in the summer,” he conceded.
Democrats easily could have confirmed Lynch. Attorney General Eric H. Holder Jr. announced his intention to resign in September, when Senate Democrats still held the majority but were heading into fierce political winds in the November midterm elections.
There was ample time to present a nominee to the Senate and then have her confirmed in November during the lame-duck session.
The last time an attorney-general vacancy occurred midterm, in fall 2007 when Michael Mukasey was nominated by the George W. Bush White House, he won confirmation in 53 days. It’s now been four months since Obama introduced Lynch as his nominee to lead the Justice Department.
However, with Holder’s September announcement, Democrats saw one more tough issue for their endangered incumbents heading into the final weeks of the election season. They pleaded with White House officials to hold off making the nomination, and Obama did not unveil Lynch’s nomination until Nov. 8 — after Democrats were crushed in the elections, losing nine seats and the majority.
Even at that late date, there was enough time to push Lynch through in Leahy’s last weeks as Judiciary Committee chairman. It takes about six weeks to conduct an FBI background check of a new nominee, but far less time for someone like Lynch, who recently underwent her vetting when she won confirmation to be the Brooklyn-based U.S. attorney.
In the conference call Thursday, Schumer acknowledged that Democrats relented to Republican wishes at that point: “Don’t rush it,” Schumer said, recalling the pleas from GOP senators.
According to Leahy and Schumer, Democrats faced a choice: push Lynch through, or confirm as many nominees to the federal courts as they possibly could before handing over the majority in January.
They chose the judges over Lynch, Leahy said, because federal judges receive lifetime appointments to the federal courts.
“I think that was a very good trade-off,” Leahy said.
Schumer said he had hoped that Republicans would then match the Democratic treatment of Mukasey in 2007, with a swift confirmation process.
But then came the fight over funding the Department of Homeland Security, which ended this week when Republicans gave up on trying to defeat Obama’s immigration policy by defunding the implementation of the actions through the DHS spending bill.
It created a toxic atmosphere for anything connected to immigration policy, and had McConnell scheduled a floor debate, it would have created a very tough environment for the nomination.
Now, Lynch is probably going to have to wait another couple of weeks to be confirmed as Republicans try to separate themselves from the immigration issue before letting her win approval.
It will mark almost six full months since Holder announced his intent to resign, a remarkably long stretch of lame-duck status for an attorney general.
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