President Obama will have to get his nominee for attorney general past a Republican-controlled Senate, Democratic and Republican aides say.
A packed schedule after the election is almost certain to push the vetting process for Loretta Lynch into January, when Republicans are set to take power in the upper chamber.
“It seems likely [the Lynch vote] would be in the next Congress. It’s difficult to process an [attorney general] that quickly,” said a Democratic aide.
But aides say the time crunch and growing GOP opposition to Lynch make it exceedingly unlikely that the replacement for Eric Holder will be confirmed in December.
That means the task of approving a new attorney general — a position that is a lightning rod for controversy — will fall to the new Republican majority of Sen. Mitch McConnell (R-Ky.).
“Ms. Lynch will receive fair consideration by the Senate. And her nomination should be considered in the new Congress through regular order,” McConnell said in a statement.
Senate Republicans are unified against Lynch’s nomination moving through the lame-duck session, giving Reid another incentive to postpone it.
Reid needs Republican cooperation to pass other priorities in December, including an omnibus spending bill, a package extending a variety of expired tax cuts, the Defense Department authorization bill and dozens of lower-profile nominees.
In addition to that legislative to-do list, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is insisting on passing an overhaul of the National Security Agency (NSA) before the clock runs out on the Democratic majority. Leahy’s committee is tasked with vetting Lynch’s nomination.
“Leahy says he wants to do the NSA reform bill before doing anything else in committee so it bottles that up,” the Democratic aide said. “Lynch is a very qualified nominee and should be confirmed no matter who is in charge.”
If confirmed, Lynch would be the first African-American woman to serve as attorney general. The Senate has already confirmed her twice to serve as U.S. attorney for the Eastern District of New York, the post she holds currently.
Leahy on Monday predicted Lynch would ultimately win broad bipartisan support, regardless of when the confirmation vote occurs.
“I think most people would agree that this nominee is extremely well qualified. There may be some who feel they have to vote no simply because it's a nominee by President Obama, but the vast majority of Republicans and Democrats will vote for her,” Leahy said on MSNBC. “She's superbly qualified.”
A Judiciary Committee aide said Leahy’s NSA reform bill — known as the USA Freedom Act — has been sent straight to the Senate floor so it doesn’t have to undergo a time-consuming markup and vote in committee.
Still, the Judiciary aide said Leahy wouldn’t make the call on how long it will take to process Lynch’s nomination until the White House submits her files to the Senate.
“We don’t have paperwork for Loretta Lynch. We still have to review her background materials,” the aide said.
The Judiciary aide said Leahy would give careful consideration to the views of the ranking Republican on Judiciary, Sen. Chuck Grassley (R-Iowa), about when to move Lynch’s nomination. Grassley prefers that Lynch come up for a vote in the new Congress — when the Judiciary panel will be under his command.
“He’s not somebody who’s going to jam people,” the Judiciary aide said of Grassley.
Sen. Orrin Hatch (Utah), a senior Republican member and former chairman of the Judiciary Committee, warned in a Friday op-ed that Democrats should not try to rush Lynch's nomination through in the compressed timeline after the elections.
“Properly considering a nominee to such a significant position as attorney general requires a full and fair process, something that is particularly hard to do in a post-election ‘lame-duck’ session,” Hatch wrote in The Washington Times.
“No one has been nominated and confirmed to be attorney general in a lame-duck session since before the Civil War,” he added.
Sen. John Thune (S.D.), the third-ranking member of the Senate Republican leadership, said on CNN Sunday that, “it would be in the best interest in the country and the Congress to wait and do this next year.”
Republicans say Lynch should undergo a careful and deliberate confirmation process to give lawmakers an opportunity to scrutinize the recent track record of the Justice Department.
GOP critics argue that outgoing Attorney General Holder often has applied the law selectively to help Obama’s political goals.
They point to the president’s executive action easing deportations of illegal immigrants who came to the country at a young age and the lack of indictments from the Justice Department against IRS officials accused of targeting conservative groups.
Sen. John Barrasso (Wyo.), another member of the Senate GOP leadership, said on Sunday that Lynch would have to answer questions about the legality of executive action on immigration.
"She is going to have to specifically come to the Hill, talk about trying to get better relations between the departments and the Hill, and specifically answer questions about executive amnesty, is it legal, is it constitutional," Barrasso said on "Fox News Sunday."
Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah) over the weekend repeated their call for postponing a vote on Lynch until the new Congress begins.
"President Obama’s attorney general nominee deserves fair and full consideration of the United States Senate, which is precisely why she should not be confirmed in the lame duck session of Congress by senators who just lost their seats and are no longer accountable to the voters," the Republican senators said in a statement.
"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," they added.