Sen. Mike Lee on looming confirmation battle for attorney general

This is a rush transcript from "The Kelly File," November 10, 2014. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Developing tonight, President Obama's nominee to become the next attorney general finding herself in the middle of a potential new showdown between the president and Republicans.

On Saturday, the president nominated Federal Prosecutor Loretta Lynch to replace retiring Attorney General Eric Holder. Twenty four hours later, the president repeated his threat that if Congress does not send an immigration bill to him that he likes, he will change our immigration rules on his own. And this will all be front and center when Mrs. Lynch goes before Congress for her Senate confirmation hearing.

Joining us tonight, Fox News senior judicial analyst, Judge Andrew Napolitano and Utah Republican Senator Mike Lee who's a member of the Senate Judiciary Committee and we begin with the senator.

Senator Lee, good to see you tonight. And so, when she goes before this committee, I understand that some of you have already written a letter saying that first of all she should not be confirmed in the lame duck session, meaning over the next two months, while the Democrats still control the Senate. Why? They don't lose their power just because they're lame ducks. Why shouldn't they put her before that body?

SEN. MIKE LEE, R-UTAH: They don't lose their power until January in the sense that the new Congress isn't sworn in until January. But Megyn, you have to remember the voters just voted. The voters voted for a very different type of leadership than we have in place right now. And we need to respect that decision. It's important to point out it's been over 100 years since we've confirmed an attorney general during a lame duck session.  I think we owe it to the voters to respect their decision in November.

KELLY: And it's been, I think, equally long if not longer since we've ever elevated somebody from the post of the U.S. attorney right to attorney general. She's skipping several steps in going right up. But this would be the first black woman we've ever had as attorney general.  President Obama only has two more years to serve out his term. Shouldn't -- and obviously this post will change after. Shouldn't he have who he wants unless she's extremely confidential, which it doesn't seem like this particular candidate is, am I wrong?

LEE: The president's certainly entitled to choose whomever he wants to fill that spot, but we have discretion to decide whether or not to confirm that person. Now, one of the important things to remember here, Megyn, is that we're not saying that she's not going to be confirmed. What we are saying is that she needs to be confirmed in the right way at the right time.

And most importantly, we want to find out where she stands on this critical legal issue of whether or not she will defend the president of the United States in believing that he may extend amnesty to illegal immigrants in violation of the law. We don't think the president constitutionally or statutorily has that power. And if she believes he does have that power, we'd like to know where she gets that theory.

KELLY: Can you do that? Can you ask her for her specific positions on issues that are right now being debated in the country?

LEE: We can ask. Doesn't mean she'll answer. But we can ask her.  And I think we have an affirmative obligation to ask her questions like this, especially when the president has come out with this theory but has yet to explain it. I would like to know how she would approach such a theory.  I'd like to know whether she thinks in the abstract the president of the United States has the authority to rewrite the U.S. immigration naturalization code, contrary to law. And I don't think he does. Nothing in the Constitution gives him that power. And there's nothing in statute that gives him that power.

KELLY: All right. She's going to dodge that because she doesn't have to answer it. She's going to dodge and say, "I'm not going to opine anything until I see everything in front of me." But one thing she is on record herself about being an advocate for -- or against I should say, is voting ID laws. She doesn't like them. And, you know, she's the child of two parents who grew up sort of in the civil rights era during the '60s in the South. And she has said this on camera, we have the sound bite. Listen.


LORETTA LYNCH, U.S. ATTORNEY GENERAL NOMINEE: Fifty years after the civil rights movement, we stand in this country in a time when we see people trying to take back so much of what Dr. King fought for. We stand in this country people trying to take over the state laws and reverse the goals that remain in voting in this country.


KELLY: Is that an issue for you?

LEE: Well, I'm not really sure what she's referring to there. I can't imagine that she thinks that requiring someone to produce a photo ID when they vote, which is the same thing they have to produce when they fly on an airplane, the same thing they have to produce when they go to the doctor these days, that that's somehow tantamount to reversing the wonderful gains of civil rights era. I can't imagine that that's what she's saying.  I don't hear her saying that. I don't see any basis in law or fact for her saying that if that's in fact what she's saying.

KELLY: Well, we will wait to see how the confirmation hearing goes whether it happens in the next few months or once the GOP takes control of the senate. Senator Lee, thanks for being here.

LEE: Thank you.

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