Procedural Purgatory

It’s time to stop asking when Loretta Lynch will be confirmed and start wondering if she ever will be.

Loretta Lynch
Loretta Lynch waits to be introduced during a confirmation hearing before the Senate Judiciary Committee on Jan. 28, 2015, in Washington.

Photo by Brendan Smialowski/AFP/Getty Images

The Senate went home on Friday for a two-week spring break without confirming Loretta Lynch as attorney general. By the time lawmakers return, it will have been more than five months since President Obama officially tapped Lynch for the job, and more than one month since the Judiciary Committee finally got around to giving her nomination its stamp of approval. In that time, the rationale Republicans have given for the delay has steadily devolved from highly questionable to flat-out nonsensical. Lynch’s wait, meanwhile, has gone from unusually long to historically so.

Through it all, the question inside the Beltway has remained when—not if—the GOP would finally relent and allow the Senate to confirm Lynch, and for good reason. Majority Leader Mitch McConnell promised in January to give Lynch the “courtesy of a vote,” and there was little reason to doubt she’d ultimately be approved if given the chance. The upper chamber, after all, had voted unanimously in 1999 and in 2010 to confirm her as a U.S. attorney in Brooklyn, New York, the position she currently holds. Even those Republicans who now oppose her attorney general nomination haven’t found a legitimate reason to actually stop it. Most informal whip counts predict Lynch would be confirmed in a historic, if largely drama-free, squeaker, with the four Republicans who have already publicly supported her crossing the aisle and Vice President Joe Biden casting the tie-breaking vote.

But with no actual vote on the horizon, it’s now reasonable to wonder: Will the GOP ever bring Lynch’s nomination to the floor? And, if it does, will she still get through?

McConnell has made it clear that he is unwilling to take up the nomination until the chamber settles an unrelated, and potentially unending, fight over abortion funding in a human-trafficking bill—a head-scratching prerequisite that wasn’t on anyone’s radar until after the fight broke out earlier this month. “The only thing holding up that vote is the Democrats’ filibuster of a bill that would help prevent kids from being sold into sex slavery,” McConnell spokesman Don Stewart told Slate in an email on Friday after being asked when or if a confirmation vote would happen. “The sooner they allow the Senate to pass that bipartisan bill, the sooner the Senate can move to the Lynch nomination.”

That explanation conveniently ignores the fact that Republicans had ample opportunity to give Lynch a vote before or after taking up the human-trafficking bill, and they will again once they return to work in mid-April. Regardless, if McConnell sticks to his guns as he has promised, and Democrats continue to filibuster the human-trafficking bill as they’ve promised, both the legislation and Lynch’s nomination will remain stuck in procedural limbo for the foreseeable future.

So where does that leave Lynch’s chances of confirmation? It’s difficult to say, in no small part because McConnell has steered the Senate into uncharted territory.

When the Senate returns from its break, Lynch will have officially waited longer than any Cabinet nominee in the past three administrations. The last attorney general to have waited longer was Reagan nominee Edwin Meese III, whose confirmation dragged on for more than a year while the Justice Department investigated his professional and personal affairs. Still, the Senate has almost always eventually signed off on a president’s Cabinet-level pick. Lawmakers have only formally rejected such a nomination nine times, and only once since 1980. And in that case, George H.W. Bush’s nomination of John Tower to be defense secretary was doomed by allegations of his alcohol abuse and womanizing. (Tower still came within three votes of confirmation.)

On those rare occasions that Cabinet-level nominations do fail, they’re typically withdrawn before they get to a vote. That’s happened during formal Senate consideration a total of seven times since World War II—but each and every time it was a result of questions about the actual nominee, be it about his performance in a previous federal job (Anthony Lake) or an issue with back taxes (Tom Daschle).

No such issue has surfaced for Lynch in the past five months, and it would be a shock if it did in the next five. She emerged from her latest vetting in arguably even better shape than she entered, and try as they might, conservatives have been unable to uncover anything scandalous. Even the GOP witnesses who testified at her confirmation hearings didn’t have a bad word to say about her as a person or an attorney. Rudy Giuliani has declared her “overqualified” for the AG position.

But Republican opposition to Lynch has never been about Lynch—it’s been about Obama and his immigration reforms. McConnell has suggested Republican anger over those reforms—and Lynch’s refusal to break with her current and future boss over them—won’t preclude her from getting a vote, but it’s clearly a major reason he’s in no hurry to give her one. Ironically, that opposition means that Lynch, who played no role in those executive actions, remains sidelined while Eric Holder, who approved the legal justification for them, remains on the job.

Still, time remains Lynch’s enemy. Generally speaking, the longer confirmation proceedings drag on, the greater the chance that they end in failure. Aye votes can change to nays when questions go unanswered or problems arise, but the reverse hardly ever happens—particularly when the majority party is looking for reasons to vote against a president’s nominee, as the GOP clearly is in Lynch’s case.

Gun-rights groups recently launched their own anti-Lynch push, warning senators that she was nothing more than “Eric Holder in a skirt.” (Such an argument relies on lawmakers being more afraid of Holder in a skirt than of him in pants.) This particular effort doesn’t appear to have cost her any votes, but it also suggests she’ll continue to be battered by the conservative storm indefinitely. She might not escape unscathed next time.

The biggest danger for Lynch might actually come from the Democratic side of the aisle. It’s long been assumed that all 46 members of the Democratic caucus would vote in favor of Lynch. But that is no longer a given. The big question mark comes in the form of Sen. Bob Menendez, the New Jersey Democrat currently at the center of a long-running corruption investigation by the Department of Justice who reportedly could be indicted any day. Assuming he is, Menendez’s current conflict of interest in regard to Lynch would only grow: Vote for confirmation, and be accused of trying to curry favor with a woman who would lead the agency prosecuting him; vote against her, and risk being accused of seeking political revenge against the Obama administration, which Menendez’s allies have suggested is pushing the DOJ investigation as a retribution for the senator’s outspoken criticism of the president’s foreign policies.

According to federal officials who spoke with the New York Times, Menendez is considering a third option: abstaining. That might be the reasonable and fair thing to do—but it probably wouldn’t be seen that way by Democrats on the Hill, given that an abstention, like a no vote, would likely leave Lynch one vote shy of the 50 she needs. Asked on Wednesday what he plans to do, Menendez refused to put anyone’s mind at ease. “I’ll decide that when she gets to the floor,” he told Politico.

Assuming McConnell ultimately gives Menendez that chance, Lynch appears destined to become either the first black woman to lead the Department of Justice, or the first modern-day Cabinet nominee to be rejected for reasons that have nothing to do with her.