Earlier this week, Democratic Sen. Richard Durbin of Illinois voiced fear that Loretta Lynch, President Obama's nominee to succeed outgoing Attorney General Eric Holder, would fail to garner the 50 votes needed to win confirmation in the Senate.
"I am worried about it," Durbin confessed to reporters on Tuesday. "I've been waiting for Republican senators to join the three in the Senate Judiciary Committee and announce their support. I may have missed some, but I haven't heard very many."
Durbin's concerns initially seemed a tad overblown. Sure, Lynch has garnered support from only four Republican senators -- Susan Collins of Maine, Orrin Hatch of Utah, Lindsey Graham of South Carolina, and Jeff Flake of Arizona. But assuming that all 46 members of the Senate Democratic caucus supported her and Vice President Joe Biden broke a 50-5o tie, it seemed that Lynch would have just enough votes to squeak by -- provided that Senate Majority Leader Mitch McConnell actually brought her nomination to the floor. (McConnell is currently holding Lynch hostage until the chamber moves on a human trafficking bill, which is currently caught up in a fierce abortion-related debate.)
Yet it increasingly appears that Durbin may be onto something. Two separate reports, one in Politico and the other in the New York Times, state that Democratic Sen. Bob Menendez of New Jersey is undecided on Lynch's nomination. The reason? In the coming weeks, Menendez is likely to be indicted on corruption charges stemming from his alleged favors for a top contributor. Those charges would be brought by the very department, Justice, that Lynch seeks to lead.
The senator told Politico on Wednesday that he'll decide on Lynch's nomination "when she gets to the floor," while the Times reports today that Menendez is considering abstaining from the vote altogether. Should he oppose Lynch or sit the vote out, the count would be 49 in favor, 50 or 51 against -- sinking the nomination of the first black woman to serve as attorney general.
Why is Menendez doing this? There's no rule stipulating that senators can't continue to vote on legislation or nominations when they're under the cloud of a criminal indictment, even if a Justice Department nomination may be qualitatively unique in this particular case.
But the senator's allies -- and assorted trolls like Texas Sen. and newly declared presidential candidate Ted Cruz -- are insisting that his likely indictment is retribution for the hawkish Menendez's vocal opposition to the administration's policies on Iran and Cuba. That conspiracy theory is patently ridiculous, given that the senator has been under investigation for years, but it's possible that an embittered Menendez will now engage in some actual political payback of his own. If that entails torpedoing an historic Cabinet nomination, so be it.