Updated 4:08 p.m. | President Barack Obama could probably nominate anyone he wants to be the next Homeland Security secretary, assuming there are no ethical or legal issues.
That's because Janet Napolitano's successor at the Department of Homeland Security could be the first Cabinet choice to be nominated in a Senate without the risk of a filibuster — or maybe even a procedural hold, assuming Senate Democrats deploy the "nuclear option" to end the need for a 60-vote supermajority to overcome a filibuster of executive branch nominees next week.
There would be policy implications of a partisan choice, however. Some Republican supporters of the Senate-passed immigration overhaul are already cautioning the president to pick a successor who has the confidence of lawmakers in enhancing immigration enforcement.
"The Senate has done the right thing for our country by passing a comprehensive immigration law. However, that work will be worth nothing if the Administration — specifically the new Secretary of the Department of Homeland Security — fails to uphold their end of the bargain," Sen. Dean Heller, R-Nev., said in a statement. "The new DHS Secretary must take bold steps immediately upon taking office to reassure the American people that this Administration will enforce any new comprehensive immigration reform plan that becomes law."
Moreover, the news of Napolitano's departure later this year to helm the University of California system comes as the House is working on a step-by-step approach to immigration legislation, and not long after an administration move to delay the employer mandate in the health care law.
"After the president's decision to unilaterally delay the employer mandate in his health care law, there is a huge trust gap right now, and that could easily poison the well on immigration," one senior GOP aide said. "How can we trust him to secure the border and enforce the law when he isn't even following the law that's named after him?"
"If Democrats actually do the nuclear option, it would reduce the confirmation process to one party rule. President Obama could install controversial nominees with a complicit Democrat majority and no real input from the opposition," said John Ashbrook, a spokesman for Senate Minority Leader Mitch McConnell of Kentucky.
"The selection of her replacement could be the first test of a scaled back check on the president's power," he added.
Immigration "gang of eight" member Charles E. Schumer, D-N.Y., has already contacted White House Chief of Staff Denis McDonough to recommend a "law and order" official for the DHS job: New York City Police Commissioner Ray Kelly.
"As a former head of the Customs and Border patrol, he has top-level federal management experience. There is no doubt Ray Kelly would be a great DHS Secretary, and I have urged the White House to very seriously consider his candidacy," Schumer said in a statement. "While it would be New York's loss, Commissioner Kelly's appointment as the head of DHS would be a great boon for the entire country."
Schumer previously touted Kelly for the FBI director post, according to the New York Daily News.
White House Press Secretary Jay Carney said it was too early to talk about a nominee for the DHS post.
"I think it is far too premature on the day that Secretary Napolitano announced that she's leaving in a month and a half to speculate about successors," Carney said. "The president will be very deliberate in examining his options."
To say Napolitano's been no favorite of conservatives would be an understatement. At times, she became the person through which Republicans such as Sen. Jeff Sessions of Alabama expressed opposition to Obama administration immigration policies, including deferred action for undocumented young people.
"Secretary Napolitano’s tenure at the Department of Homeland Security was defined by a consistent disrespect for the rule of law," Sessions said in a statement. "The most significant obstacle to immigration reform remains President Obama’s selective enforcement of the law. Any selection — interim or permanent — to replace Secretary Napolitano must disavow these aggressive non-enforcement directives or there is very little hope for successful immigration reform."
Matt Fuller contributed to this report.