Loretta Lynch has already waited 128 days for the Senate to vote on her confirmation to be attorney general. It appears she will have to wait at least a few more.
Senate Majority Leader Mitch McConnell had suggested he’d finally bring Lynch’s nomination to the floor this week but unexpectedly reversed course on Sunday, saying that vote wouldn’t happen until the chamber resolved an unrelated fight over abortion funding that has derailed an otherwise uncontroversial anti-human-trafficking bill (and now, the Lynch confirmation). “I had hoped to turn to her next week, but if we can’t finish the trafficking bill, she will be put off again,” the Kentucky Republican said on CNN’s State of the Union.
The bill in question increases penalties for pimps and johns involved in human trafficking to pay for a restitution fund for their victims. The general effort has long shared bipartisan support, and the bill itself had been expected to provide a rare reprieve from the usual partisan gridlock that has become regular order on Capitol Hill. Just last week, McConnell and his Democratic counterpart, Harry Reid, were predicting speedy passage. “I doubt if there will be problems on my side,” Reid declared last Monday. “If there is, I will work to clear them."
Such optimism, however, all but evaporated when Democrats discovered that tucked inside the bill was a controversial provision that would bar the fund from being used to pay for abortions for the victims, except in cases of rape or incest, or if the life of the woman were in jeopardy. Congress has been inserting similar language—often known as the Hyde amendment—into annual spending bills for the past four decades. The differences between those efforts and this one, though, is that budget riders aren’t permanent—they need to be reauthorized each year—and that the previous provisions only concerned taxpayer dollars, not criminal penalties like the ones that would pay for the victims’ fund. (Republicans already won’t let taxpayer money directly fund abortions; Democrats don’t want that ban to extend to other government-collected cash.)
It remains unclear exactly how directly the Hyde language would impact victims of human trafficking under the bill—many would appear to still be able to use the restitution fund for an abortion under the rape exemption—but liberals fear the provision would set a dangerous precedent for Republicans to exploit down the road. The bill as written, according to Reid’s office, “could lead to a dramatic expansion of abortion restrictions in future years.”
Adding some intrigue to the somewhat wonky sticking point is that the legislation—complete with the controversial abortion language—actually managed to sail through the Senate Judiciary Committee last month without Democrats so much as noticing it. The provision itself is on Pages 4 and 5 of the 68-page bill, although whoever wrote it appears to have gone to considerable lengths to avoid actually using the word abortion. Instead the provision makes a rather convoluted reference to the Hyde amendment, declaring that the victims’ fund “shall be subject to the limitations on the use or expending of amounts described in sections 506 and 507 of division H of the Consolidated Appropriations Act, 2014 ... to the same extent as if amounts in the Fund were funds appropriated under division H of such Act.”
“What do you want me to tell you? We missed it!” Sen. Dick Durbin, the chamber’s No. 2 Democrat, told Politico last week when asked why Democrats didn’t recognize the language. “It was an obscure reference. Clearly if it had been front and center, we would have caught it.”
Democrats blame Republicans for circulating a legislative briefing that conveniently failed to mention the abortion provision, and Chairman Patrick Leahy claims he and the rest of the judiciary panel’s Democrats were “assured” it wasn’t in the bill. Republicans, meanwhile, say that wasn’t the case—and furthermore contend Democrats had plenty of chances to actually read the bill for themselves.
Regardless of the dispute’s origins, though, it appears likely to derail a planned procedural vote on the bill tentatively set for Tuesday. Republicans would need at least six Democrats to break with their party to avoid a filibuster.
Meanwhile, Lynch’s four-month-long-and-counting confirmation odyssey will continue. Eric Holder’s would-be replacement has faced a lengthy wait that has gone from unusually long to historically so. By the New York Times’ count, 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. Assuming Lynch does eventually get a vote, she’s expected to win confirmation by the narrowest margin in AG history—and may even need Joe Biden to break a 50–50 tie, marking the first time that a vice president would cast a tie-breaker for a Cabinet confirmation in Senate history.
GOP opposition to Lynch has come down to the single issue dominating Congress for much of this year: President Obama’s executive immigration action. While Lynch had nothing to do with the policy itself, she angered Republicans during her confirmation hearing by saying she believed the actions were constitutional. (As Roll Call’s David Hawkings accurately points out, in more rational times, it would have hardly been newsworthy for an AG nominee to side with the president who nominated her.) Meanwhile, Republicans have had noticeable trouble finding anyone to say anything bad about Lynch as a person or an attorney. But for this week—like the 18 that came before it—that does not appear to matter.