Senate Republicans are weighing a plan to block most of President Barack Obama’s federal appeals court nominations starting in June or earlier in response to the recess appointments he made this month.
The idea was discussed at a private retreat of Senate Republicans on Jan. 25 at Mount Vernon, the Virginia estate of George Washington. The option of stopping all consideration of executive and judicial nominees didn’t get as much support as a more modest reaction to Obama’s recess appointments, which included the installation of Richard Cordray as director of the Consumer Financial Protection Bureau, senators said.
Broadly blocking nominees “was discussed, but we’re also very aware he would like us to play into his narrative, and we’re not going to take the bait,” said Senator John Cornyn of Texas, who heads the National Republican Senatorial Committee, referring to Obama’s rhetoric about a “do-nothing” Congress.
“There will be a response, but it will be measured and appropriate,” Cornyn said.
The Constitution gives presidents authority to make appointments without confirmation when the Senate is in recess. Republicans say Obama’s Jan. 4 appointments of Cordray and three National Labor Relations Board members were unlawful, because the Senate stayed in session by holding brief pro-forma meetings every three days during the holiday break.
Such sessions also were used to forestall appointments when Republican President George W. Bush was in office.
Precedent for Delays
The idea of stopping consideration of U.S. Circuit Court nominees near the end of a presidential term has precedent. The late Senator Strom Thurmond, a South Carolina Republican who was the longest-serving senator in U.S. history, tried to do that when he was the Judiciary Committee chairman in the 1980s.
His so-called “Thurmond rule” generally held that appellate-court nominations shouldn’t advance starting in June in the final year of a president’s term, unless they were broadly accepted by both parties.
Senator Patrick Leahy, a Vermont Democrat who heads the Judiciary Committee, employed this practice when President George W. Bush was in office. In an interview today, Leahy said the rule has been “all over the board” and described “12 different ways” it was used by Thurmond. Leahy insisted that he showed flexibility when Bush was in office.
“I put through a number of George Bush’s nominees, even after June,” Leahy said.
Senator Tom Coburn, an Oklahoma Republican and a member of the Judiciary Committee, said he thinks Leahy started holding nominees up earlier than June. Coburn said it might be appropriate for Republicans to start halting Obama’s appeals court picks in March.
“I think that’s kind of the rule now,” he said.
Senator Marco Rubio of Florida, a first-term lawmaker who was elected with Tea Party backing, also said the idea is being considered. He said he’s not sure if he favors it.
Rubio said he is ruling out broad approaches under which the Senate would reject nominees as retribution for Obama’s recent appointments.
“I think there are significant constitutional issues here,” Rubio said. “On the other hand, I’m uncomfortable about taking measures to simply oppose people just to offer a shot across the bow.”
At least one Senate Republican said he was willing to consider a broad strategy. In remarks on the Senate floor yesterday, Mike Lee of Utah said he might delay nominees unless Obama rescinds his recess appointments.
“I find myself duty bound to resist the consideration and approval of additional nominations until the president takes steps to remedy the situation,” Lee said.
Lee’s spokesman, Brian Phillips, said the senator’s actions will probably include requiring Senate Majority Leader Harry Reid, a Nevada Democrat, to go through the process of breaking a filibuster on every nomination vote. Many routine nominations move through the Senate unanimously, taking only an instant to pass. That allows Reid to use floor time for other matters.
Some Republican senators say they will look primarily to the courts to resolve the recess appointments issue. The National Federation of Independent Business and four other litigants have challenged the labor-board appointments in federal court in Washington. The plaintiffs argue that the agency can’t enforce a new rule because the appointments were made without the advice and consent of the Senate.
Coburn said Republicans shouldn’t fall into a “political trap” set by the president. “I think you let the court case go forward,” Coburn said.
Talks to Continue
Senator Charles Grassley of Iowa, the top Republican on the Judiciary panel, said talks will continue on an appropriate reaction to the recess appointments, and he stressed that no decisions have been made.
“The caucus is still divided on exactly what to do, but something has to be done,” he said.
The Senate this week voted, 74-16, to confirm John M. Gerrard as a U.S. district court judge in Nebraska, in a vote scheduled before the recess appointments.
There are 78 other nominations pending before the full Senate, including 18 judicial nominees and candidates for comptroller of the currency, two spots on the Federal Trade Commission and two positions on the Federal Deposit Insurance Corp.’s board.
On the U.S. circuit courts, there are currently 16 vacancies, she said, and nine of those have nominations pending before the full Senate or in committee.