Three days ago, the Huffington Post’s Jennifer Bendery and Amanda Terkel had a lot of fun listing events that took less time than the 163 days Attorney General in waiting Loretta Lynch had waited for a confirmation vote. “Gazillions of mosquitoes were born, lived to be old in mosquito years and died in less time than Lynch has been waiting,” Bendery and Terkel wrote. “Kim Kardashian, Britney Spears and Dennis Rodman all got married and filed for divorce in less time — combined! For the love of God, Earth was created in less time.” Some other events that were shorter than Lynch’s wait include the writing of the Constitution and the “lifespan of New Coke.”
On Thursday, the 166th day, Lynch finally received her confirmation vote. She was narrowly confirmed, by a 56–43 margin. Neither the drawn out nature of Lynch’s confirmation process nor the closeness of her vote bodes well for the fate of other contentious nominees — most notably, a future Supreme Court nominee — so long as the makeup of the Senate stays the same. Though the filibuster reforms pushed through in the last Congress allow nearly all nominees to be confirmed by a simple majority vote, 60 votes are still necessary to break the filibuster of a Supreme Court justice.
At the time of her nomination, Lynch was widely perceived as a concession to the fact that Republicans would control the Senate and that they would resist a nominee with a controversial background. Obama eschewed more provocative candidates such as Secretary of Labor Tom Perez, a progressive champion who became the scourge of banks accused of race discrimination during his tenure leading the Department of Justice’s Civil Rights Division, in favor of the far more apolitical Lynch. Lynch is currently the United States Attorney for the Eastern District of New York, a job she also held under President Clinton. Before Clinton appointed her to that role, she rose through the ranks as a career prosecutor, eventually becoming Chief Assistant U.S. Attorney in the office she now leads.
Just as importantly, Republicans had a strong incentive to confirm the relatively apolitical Lynch. The minute Lynch is sworn in as Attorney General of the United States, Eric Holder, a man that many Republicans loathe, is out of a job. Each day that Senate Republicans delayed a vote on Lynch was another day that Holder wielded the full power of the United States Department of Justice.
Yet Lynch’s confirmation quickly turned into what Politico described as a “proxy war” over immigration. In November, President Obama announced new policies that would temporarily allow close to 5 million undocumented immigrants to remain in the country unmolested by immigration officials. The policies, which were enacted pursuant to the “broad discretion” the execution branch holds under federal immigration law, were politically controversial even before they were announced. Then, in February, a Republican judge with a history of statements hostile to undocumented immigrants ordered the new policies halted, breathing an apparent legitimacy into the legal arguments against those policies in the process.
At her confirmation hearing in January, Lynch turned aside Republican senators’ invitations to denounce President Obama’s programs. In response to Sen. Chuck Grassley’s (R-IA) question about a Justice Department memo explaining the legal basis for the programs, Lynch responded that “I don’t see any reason to doubt the reasonableness of those views.” Later, when pressed by Sen. Jeff Sessions (R-AL) to answer whether she thought the president’s policies were legal, she responded “as I’ve read the opinion, I do believe it is, Senator.”
This triggered a predictable reaction from Senate Republicans. Sen. Deb Fischer (R-NE), in a representative statement, claimed that she was “disturbed and disappointed” by Lynch’s statements on immigration. But it is unclear why any senator would be surprised by Lynch’s answers. President Obama’s immigration policies are one of his signature programs. Moreover, two Republican members of the Supreme Court, Chief Justice John Roberts and Justice Anthony Kennedy, have both strongly hinted that they believe that Obama’s programs are legal.
So, by demanding that Obama appoint an attorney general who agrees with them on immigration, many Senate Republicans weren’t simply asking the president to name someone who opposes one of his most important initiatives, they were asking him to name an attorney general who may be to the right of the guy that gutted the Voting Rights Act.
If Senate Republicans are willing to make this demand of an attorney general who will serve for less than two years — and who will replace a sitting cabinet member that many Republicans speak of as if he were Beelzebub — what demands will they make of a Supreme Court nominee who would fill a vacant seat on the Court and who would serve for life? And if they demand that the nominee must be to the right of Chief Justice Roberts on, say, Obamacare, then there will be literally no one that a Democratic president could nominate that will be acceptable to the overwhelming majority of Senate Republicans.