When Senate Majority Leader Mitch McConnell (R., Ky.) postponed the vote to confirm Loretta Lynch as attorney general in order to break the filibuster of a human-trafficking bill, Senator Dick Durbin (D., Ill.) punished him by suggesting that the delay was motivated by racism.
“Loretta Lynch, the first African-American woman nominated to be attorney general, is asked to sit in the back of the bus when it comes to the Senate calendar,” Durbin said on the Senate floor in March. McConnell didn’t flinch during the human trafficking fight, which Republicans ultimately won, but such accusations stung.
In public, Republican senators and aides say that GOP support for Lynch’s confirmation reflects the belief that the Senate has a duty to confirm a president’s cabinet nominees if they have the requisite qualifications. In private, they admit that charges of racism such as the one leveled by Durbin discouraged them from blocking her nomination entirely. As a result, Obama paid no political price for issuing executive orders on immigration that he himself had previously admitted were unconstitutional.
“It appears to be all upside for him personally and for what he wants to accomplish,” Senator Mike Lee (R., Utah) tells National Review while discussing the orders. “There is significant downside to the American people and to our legal system and to our constitutional order.”
#related#To discourage Obama, or future presidents, from issuing such sweeping executive orders, some senators wanted McConnell to refuse to allow a vote on the floor. That proposal failed due to fear of the political backlash that Democrats would instigate by accusing Republicans of racist motives.
“People are very nervous about Republicans not being willing to have a vote on the first black woman attorney general,” according to one GOP senator who spoke on condition of anonymity.
Republicans agree that Lynch is qualified for the job — “probably the most qualified nominee that’s come out of this White House,” concedes Senator Richard Burr (R., N.C.), who voted against her confirmation.
Nevertheless, Lynch’s exchanges with Lee (R., Utah) and Ted Cruz (R., Texas) during her confirmation hearings in January put her nomination in peril. Lynch refused to identify any hypothetical limit to Obama’s power to claim that the doctrine of prosecutorial discretion allowed him to stop enforcing certain laws; at one point, she declined to say if a future Republican president could unilaterally lower taxes by refusing to collect revenue beyond a certain tax rate.
“Senator, before I could render a legal opinion on the hypothetical as presented to me, I would want to know the entire scope of the action but also have the time to gather all of the legal precedent, the cases, congressional actions,” Lynch told Cruz.
Lee believes it should be an easy call. “In this particular position, we need to have someone who is willing to acknowledge some kind of limit to the power of the president to basically rewrite federal law,” he says.
The frustration with Lynch built in several wings of the conference. Multiple GOP sources pointed to Senator John McCain as a leading opponent of her nomination, an unexpected development given his support for the “Gang of Eight” immigration bill that conservative activists opposed in the last Congress.
The Arizona Republican had what he concedes was a “passionate” debate with Senator Orrin Hatch (R., Utah) during a conference lunch last month. Hatch — who “is very pro-deference” when it comes to the question of confirming a presidential nominee, according to a GOP Senate aide familiar with his thinking — argued that Republicans should defer to Obama because Lynch has a strong résumé. When McCain emphasized repeatedly that Lynch had refused to identify a constitutional limit on the president’s authority, Senator Jeff Flake (R., Ariz.) shifted the focus away from Hatch by saying that he would also vote for Lynch.
“I’ve felt very strongly, as you know, that if she was going to support what the president was doing unconstitutionally, then I couldn’t vote for her,” says McCain. “It’s my state that’s [got] a border with Mexico, it’s my state that has these thousands of children who show up, it’s my state that has ranchers who have people go across their borders, and I have been heavily committed to immigration reform.”
When McConnell delayed Lynch’s confirmation vote until the resolution of the human-trafficking debate, Republicans got a taste of the racism charges they’d hoped to avoid. Activists targeted the majority leader, in particular, for protests outside his office and over the phone.
“The perception is that her race and sex have an impact,” Representative Sheila Jackson Lee (D., Texas) told Roll Call. “Would anyone else be treated with a five-week delay, blaming it on a dispute of legislators over legislation?”
In the end, according to one GOP Senate aide, Lynch’s “race and sex” did “have an impact” on her nomination, which was confirmed when ten Republicans voted with the chamber’s 44 Democrats and two independents in her favor.
“If she were white, I think it would have been more difficult to find the five votes needed to be confirmed,” the aide says.
— Joel Gehrke is a political reporter for National Review.