Special Bulletin. Capitol Contortions: Loretta Lynch, Immigration and Human Trafficking

The Senate Republicans have once again contrived to tie themselves into knots from which there appears to be no graceful escape. The nomination of Loretta Lynch, has long been held up, and is now being further delayed while the Senate struggles to resolve a debate over an anti-abortion provision in an otherwise uncontroversial bill on human trafficking—a knot within a knot.

By Daryl Cagel

The failure to confirm Ms. Lynch, an eminently well-qualified nominee for Attorney General, has placed the Republicans in an increasingly embarrassing position. As Rich Lowry, editor of National Review, began a March 18 essay in Politico:

An unanswerable question hangs over the nomination of Loretta Lynch for attorney general: Is Republican opposition to her more racist or sexist?

Lowry observed that Senator Durbin had raised the issue of racism in a Senate speech that was more than ordinarily tasteless, “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.” At the same time, Lowry noted, Hillary Clinton tweeted that the delay in the Lynch vote was an “offense against women.”

Lowry hastened to explain that the delay was neither racist nor sexist, and that Republican opposition to Lynch was based only on her support of President Obama’s “executive amnesty.” He continued:

This isn’t a mere matter of policy or personal preference. It implicates her view of the constitutional order that she will be sworn to uphold. Whether she thinks the executive branch can in effect write laws on its own is a threshold question. Her answer in the affirmative should be disqualifying, no matter how impressive her career has otherwise been, or how historic her confirmation would be.

Accordingly, Lowry urged that Republicans should “never” bring her confirmation to a vote and “never” confirm her.

Lowry’s position is not an outlier. It is the position taken by many conservative senators and they were joined this week by two of the more thoughtful members of that chamber, Lamar Alexander and Bob Corker, who had previously been reported to be undecided. Senator Corker said, in a statement released by his office, “The job of the U.S. attorney general is to enforce federal laws as written, not as the administration wishes they were written.”

We agree with Rich Lowry that, despite partisan demagoguery, neither racism nor sexism, are a factor in the opposition to Lynch. Nevertheless, we find that opposition to the Lynch nomination is not only ill-conceived but, in the mode of its expression, foolish. There are, to be sure, serious and legitimate legal objections that can be raised with respect to the President’s executive actions on immigration, but those objections can be raised in court as, in fact they have been and where they are presently under consideration. But they have no place in the matter of Ms. Lynch’s confirmation. She had no part in the development or legal approval of the President’s actions and her endorsement of them at her confirmation hearing could fairly be described as pro forma. It is absurd to imagine that the President would nominate anyone for the position of Attorney General who would repudiate, or even express reservations about, his immigration actions. What then would be Lowry and the Senate Republican’s wish—for the position of Attorney General to remain vacant for the remainder of Obama’s term? That is the only logical conclusion and if it is expressed and pursued, it can only bring further damage to the party’s tattered reputation for inept governance.

In the meantime, what of the human trafficking bill? The bill would, among other things create a fund from penalties imposed on traffickers that would be used to provide financial assistance to victims of trafficking. The bill has enjoyed broad bi-partisan support, but Democrats belatedly discovered that Republicans had included a provision that, with limited exceptions, bars the use of the fund to pay for abortions. The provision is similar to the longstanding ‘Hyde Amendment” that, in various statutes governs use of taxpayer funds, and why Democrats and their staffs took so long to notice its presence here remains something of a mystery. In any case, once the provision was belatedly discovered, Democrats proceeded to filibuster the bill to prevent its coming to a vote unless the provision were removed. Majority Leader McConnell then announced that the Lynch confirmation vote would be delayed until the trafficking bill had been voted on, and there the matter stands.

On the merits, we believe that the provision at issue should be removed from the trafficking. At least a few Republicans in the Senate may agree. Senator Mark Kirk offered pointed and cogent observations reported in Roll Call:

“My wish is that we hadn’t junked that bill up with abortion politics,” Kirk said. “Let’s just stand for the principle that we are all against slavery and keep the bill clean of extraneous provisions, and that applies to [Department of Homeland Security] appropriations, too.”

That was a reference to the ultimately failed effort by Republicans to tie a blockade of funding for President Barack Obama’s executive actions on immigration to funding for the DHS.

Kirk said the GOP majority should act “as a governing party, always keep bills focused on their main purpose, not link them to the hot social issues of our time.”

The best way out of the impasse would be for enough Republicans to join Democrats in voting to remove the controversial provision. But that is probably wishful thinking. Failing that, we would hope that McConnell could find a way to persuade his caucus to let him proceed with the Lynch confirmation, but that may also be wishful thinking. Gail Collins is seldom quoted in this space, but her March 29 column seemed to sum it up rather neatly, “Possible theme for the session: ‘Republicans who can’t lead meet Democrats who can’t read.’”