Bloomberg News

Judicial Nominees Will Get Senate Vote as Reid Decries Holdup

March 13, 2012

U.S. Senate Democratic Leader Harry Reid said he will require votes in coming days on 17 of President Barack Obama’s judicial nominees, escalating a fight with Republicans over confirmations.

“Republicans have prevented the Senate from doing its constitutional duty,” Reid of Nevada said on the Senate floor yesterday. He said Republicans are holding up “consensus nominees,” including some approved unanimously by the Senate Judiciary Committee.

Reid’s decision follows failed talks with Senate Minority Leader Mitch McConnell, a Kentucky Republican, over a slate of nominees to put forward for a vote. The Senate this year has confirmed seven federal judges.

Twenty-two judicial nominees are pending before the Senate, and Reid is forcing votes on all of the 17 district court judges on that list.

Nine of the lower-court nominees were approved last year by voice vote in the Judiciary Committee. Of those approved by the panel this year, all but two cleared the committee with only one “no” vote.

Obama angered Senate Republicans with his Jan. 4 decision to appoint Richard Cordray as the first director of the Consumer Financial Protection Bureau and three members to the National Labor Relations Board while Congress was on a holiday break.

Obama said he bypassed Republican obstructionism with recess appointments allowed under the Constitution. Republicans said Congress wasn’t in recess because both chambers were holding brief sessions every few days.

No Strategy

So far, Senate Republicans as a group haven’t developed a strategy to respond to the recess appointments. A spokesman for McConnell said Reid’s move to force votes on the nominees is a distraction from issues that need the Senate’s attention.

“It seems to run counter to their pledge to focus on jobs and gas prices,” said McConnell spokesman Don Stewart.

In the Senate, which Democrats control by 53 to 47 votes, nominations are usually subject to bipartisan negotiations over who will get a vote and when. That’s because it takes 60 votes to end a filibuster of each nomination, and any one senator’s ability to use the delaying tactic can eat up floor time.

Reid filed a motion to start a lengthy process for votes on the 17 judicial nominations, requiring up to 30 hours of debate on each judge before a vote to end opponents’ delaying tactics. A senior Democratic leadership aide said Reid will pursue an agreement with Republicans this week that would allow each nominee to receive a vote while avoiding a debate that could extend into April.

Balancing Act

Leaders of both parties are faced with an election-year balancing act in the debate, said Larry Baum, a political science professor at Ohio State University who studies judicial politics.

‘Republicans would prefer to get as few of the nominees through as possible, but at the same time, there’s a certain pressure on them not to be too obstructionist,’’ Baum said. “That makes them look bad and they may worry about retaliation.”

Reid and other Democratic leaders, he said, face the risk of pushing too hard and sparking a revolt against consideration of other judicial or executive branch nominees this year, he said.

At the same time, Baum said, they could benefit by energizing outside groups that are frustrated with a lack of progress on judicial nominations and that could help motivate grassroots campaign efforts for Democrats.

‘Drag Their Feet’

Carl Tobias, a professor at the University of Richmond School of Law in Virginia, said Reid’s maneuver contains a risk of tying up Senate floor time. While Republicans don’t want to appear to be too partisan and unyielding, he said they may see little benefit in making a deal with Reid right away to move things along.

“The strategy is to drag their feet on confirmations, and they’ve done that pretty well so far,” Tobias said.

Only one Republican senator -- Mike Lee of Utah -- has said he will oppose all of Obama’s nominees until the president rescinds the four recess appointments. Party leaders are reluctant to engage in a high-profile battle on this issue with Obama, who has made opposition to Republicans in Congress a campaign theme.

Of the seven judges confirmed this year, all passed the Senate by comfortable margins. The narrowest vote was on Feb. 17, when the Senate confirmed Jesse Furman to be a district court judge for New York. The vote was 62-34, with no Democrats voting against his nomination.

Lawsuit Over Appointments

Most Senate Republicans signed a letter in early February saying they would file a court brief supporting a legal challenge to the labor board recess appointments. They haven’t filed it, and the lead case has hit a snag.

U.S. District Judge Amy Berman Jackson in Washington rejected a challenge to the appointments on March 2, calling it a “political dispute” that she wouldn’t resolve. The judge said the National Federation of Independent Business and other groups “attempted to shoehorn” the challenge into a case over a rule requiring companies to notify workers of their right to form a union.

The business groups are appealing her decision.

To contact the reporter on this story: Laura Litvan in Washington at llitvan@bloomberg.net

To contact the editor responsible for this story: Jodi Schneider at jschneider50@bloomberg.net


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