Hearing Impairment

How Loretta Lynch’s confirmation could become the next skirmish over immigration and executive action.

Loretta Lynch, nominee for U.S. attorney general, and President Barack Obama
U.S. attorney general nominee Loretta Lynch speaks during an event at the White House, as President Barack Obama looks on, in Washington, D.C., on Nov. 8, 2014.

Photo by Jim Watson/AFP/Getty Images

If the Obama administration gets its way, the confirmation process for Loretta Lynch, the president’s attorney general nominee, will be boring and noncontroversial. But it could instead get extremely interesting, and that depends a lot on what Obama does in the next few weeks on immigration.

There’s no guarantee—what can we really know in this mixed-up world of ours?—but Senate Republican aides indicate that Lynch’s confirmation has the potential to be enormously contentious. Even though Lynch is widely seen as a low-risk pick with a hard-to-attack track record, Republicans are targeting her for what could be a tough confirmation focused more on policymaking than personality. Here’s how this could play out.

Lynch’s confirmation process probably won’t move forward until after the new Congress is sworn in on Jan. 3. At Politico, Seung Min Kim notes that Senate Minority Leader (and soon-to-be Majority Leader) Mitch McConnell has said he doesn’t think her confirmation should happen during the lame-duck session. And, per an aide she cites, the Senate Judiciary Committee hadn’t gotten Lynch’s paperwork as of Nov. 10.

At the Congressional Hispanic Caucus Institute gala in early October, Obama promised to take executive action on immigration before the end of 2014. The Washington Post reported in August that the president’s aides have discussed a variety of options that could block deportations for up to 5 million undocumented immigrants.

If all of that happens, Lynch won’t head to the Senate Judiciary Committee for her confirmation hearing until after the president has taken unilateral action to slow deportations. That move is so controversial that he postponed making it until after the midterms in an effort to save vulnerable Democrats.

Sens. Ted Cruz and Mike Lee have already promised to ask Lynch in her confirmation hearing about her stance on this executive action. They released a joint statement on Nov. 8 indicating immigration will be central during her confirmation process.

“The Attorney General is the President’s chief law enforcement officer,” the statement reads. “As such, the nominee must demonstrate full and complete commitment to the law. Loretta Lynch deserves the opportunity to demonstrate those qualities, beginning with a statement whether or not she believes the President’s executive amnesty plans are constitutional and legal.”

Heritage Action, a branch of the Heritage Foundation that scores votes in Congress and rates members’ conservatism, has indicated it has the same concerns.

“There is no doubt that Lynch’s confirmation would be easier if the President took his unilateral amnesty off the table,” writes Heritage Action spokesman Dan Holler. “If Lynch tries to defend the indefensible, she’s unlikely to receive conservative support, but she does deserve the opportunity to answer those questions (and many more, presumably) next year.”

In other words, conservative leaders are laying the groundwork to make Lynch’s confirmation fight about whether the president has the legal authority to take unilateral executive action on immigration. One senior Senate aide working on the nomination process said Republicans’ opposition goes beyond just immigration; the question at hand isn’t so much whether slowing deportations is a good idea, but whether the president has the unilateral authority to make that call.

Conservative charges of executive overreach—which echo many of the criticisms liberals leveled at then-President George W. Bush—are longstanding. Speaker John Boehner made the argument in a CNN op-ed defending his decision to sue the president, and National Review devoted a cover story to the issue. Lynch’s confirmation could be the setting of the next skirmish over it.

It’s a safe bet Obama’s attorney general nominee won’t say the president is a lawbreaker at her confirmation hearing, which would leave Senate Republicans with three options:

1. They can shrug, confirm Lynch, and move on to other policy battles with the Obama administration.

2. Senate Republicans can put their collective foot down and work to prevent Lynch’s confirmation.

3. Some Senate Republicans can put their foot down and vote against Lynch’s confirmation while other (more moderate) Senate Republicans vote with Democrats to confirm her.

The first option isn’t very interesting and also not very likely. Option No. 2 is extremely interesting because it would mean the possibility of a protracted fight between Senate Republicans and the White House over who becomes the next attorney general. (Fireworks! Popcorn!) Option No. 3 is also really interesting, though, because it probably means there would be tense, messy infighting among Senate Republicans.

No. 3 happens if Lynch says something in her confirmation hearing that placates the concerns of Senate Republican leadership but isn’t sufficient for Cruz, Lee, and their conservative allies in the conference.

That could be a tricky line for Lynch to walk. In October, McConnell sent the following statement to Matt Boyle of Breitbart. “As attorney general, Eric Holder too often put political and ideological commitments ahead of the rule of law,” he said. “That’s not something the American people expect in the nation’s highest law-enforcement official, and it’s something Mr. Holder’s replacement should commit to avoiding at all costs as a condition of his or her confirmation—whether it relates to the President’s acting unilaterally on immigration or anything else.”

Saying that kind of commitment is “a condition” of her confirmation is pretty strong. Privately, some Republican aides are skeptical that Lynch would make a commitment strong enough to mollify them.

“If she says she supports the president’s executive action, then she will not be confirmed,” said an aide with knowledge of the confirmation process.

That aide explains his confidence by arguing that people underestimate the chain of events the president would trigger by taking unilateral action on immigration. Thom Tillis, Dan Sullivan, and Tom Cotton all used the issue to criticize the Democratic incumbents they faced in the midterms (results are still pending in Sullivan’s race), and their arguments will be fresh in the minds of the Republican base’s immigration hawks. It’s also worth noting that Tea Party activists liked the Senate Gang of Eight’s comprehensive immigration reform bill about as much as they liked Obamacare. So if Lynch’s nomination gets testy, it gives Capitol Hill Republicans a chance to go on cable news and talk up their tough-on-illegal-immigration credentials

So the Republican playbook on Lynch (thus far) has little to do with her career and much more to do with repudiating the president on immigration and executive action. How she handles questions on presidential authority in her confirmation hearing could play an outsize role in determining her fate.