A day after President Barack Obama nominated Loretta Lynch to be his new attorney general, a debate is raging over when the Senate should begin her confirmation process – during the lame duck session of Congress that begins this week or when the new Republican-controlled Senate takes over in January?
Obama said Lynch, the U.S. Attorney for the Eastern District of New York tapped to replace Attorney General Eric Holder, should be confirmed without delay. Sen. John Thune, R-S.D., speaking on CNN’s ‘State of the Union’ Sunday argued that it could wait.
‘I think it would be in the best interest of the country and the Congress for (us) to wait and do this next year under regular order,’ Thune told CNN’s Candy Crowley. ‘There’s hearings and everything that goes with that. We’ve got to move a funding bill. We’ve got to prevent some tax increases, a number of things that have to be done before the end of the year. And Eric Holder has said he’s not going anywhere soon.’
Sen. Chris Murphy, D-Conn., who also appeared on ‘State of the Union’ Sunday, said he’d like the current Democratic-controlled Senate take up Lynch’s nomination in the lame duck session.
‘I would like to see us move forward,’ Murphy said. ‘I think this is an important post and I think we should have somebody on the ground there sooner rather than later.’
Senate Majority Leader Harry Reid, D-Nev., hasn’t said whether he’ll bring up Lynch’s nomination in the closing days of the 113th Congress. Senate Minority Leader Mitch McConnell, R-Ky., who stands to be majority leader next year, said Lynch’s ‘nomination should be considered in the new Congress through regular order.’
Regular order means that Lynch’s nomination would go through the Senate Judiciary Committee before being debated and voted on the Senate floor. Once on the floor, regular order calls for a majority of 60 votes to end debate on the nomination.
Frustrated by what he considered deliberate Republican efforts to delay Obama’s judicial, administrative and ambassadorial nominees, Reid, changed the Senate’s rules on nomination last November when he triggered the so-called "nuclear option."
The parliamentary maneuver abolished the 60-vote threshold and replaced it with simple majority-rules votes on all nominees except Supreme Court selections.
The anti-filibuster move enraged Senate Republicans to the point that Sen. Charles Grassley, R-Iowa, who’s in line to become chairman of the Senate Judiciary Committee, suggested last year that if his party gained the majority it should expand the nuclear option to include Supreme Court nominees.
McConnell blasted Reid’s move as a power grab, but he hasn’t specifically said whether or not he would adopt the nuclear option as majority leader. In a May speech at Washington’s American Enterprise Institute, McConnell said "Reid did a lot of damage" with the nuclear option and added that "It’s hard to un-ring a bell."
McConnell’s call to consider Lynch’s nomination through regular order could anger some conservatives. Last week, 26 conservative leaders, activists and academics wrote a letter to McConnell Wednesday, urging him to retain the nuclear option.
‘The decision by Senator Reid and his Democratic colleagues to deploy the so-called ‘nuclear option’ was transparently designed to facilitate the confirmation of judicial nominees who would insulate ObamaCare and other aspects of President Obama’s agenda from meaningful judicial review,’ the group wrote. ‘Regardless of their motives, we see very little upside and significant downside in reviving the judicial filibuster.’
It was the latest message from some conservatives and tea party supporters who are worried the McConnell won’t aggressively pursue their agenda, which includes repealing the Affordable Care Act.
When McConnell said last month that ‘It would take 60 votes in the Senate’ to repeal the law and ‘No one thinks we’re going to have 60 Republicans,’ several conservative groups and individuals howled.
‘This is why so few people actually believe Mitch McConnell anymore,’ Ken Cuccinelli II, president of the Senate Conservatives Fund and former Virginia attorney general, wrote on the fund’s website last month. ‘He makes conservative promises and then fails to follow through. He said he would rip Obamacare out ‘root and branch’ but has now flip-flopped days before the election and waved the white flag.’
McConnell said he remains committed to going after the health care law. But rather than conducting full repeal votes – the Republican-held House of Representatives has done more than three dozen of them – McConnell has indicated that Senate Republicans will attack the law through the budget reconciliation process, which requires only 51 votes, and other maneuvers.
‘We’ve restated what he’s said for years: there are multiple approaches, but all would require a presidential signature,’ said McConnell spokesman Don Stewart said. ‘But that doesn’t mean (Republicans)…shouldn’t fight for repeal – whether that’s through reconciliation, full repeal and through individual onerous provisions.’