http://www.politico.com/story/2014/12/obama-nominees-senate-113868.html?hp=c3_3Obama nominees in doubt
Democrats pushed through dozens in December, but Republicans have all the leverage now.
By Burgess Everett
12/29/14 9:02 PM EST
Democrats are still dancing in the end zone after running up the score on dozens of President Barack Obama’s nominees during the lame duck.
They should enjoy the moment, because Republicans are about to step up their goal-line defense.
During the last five days of the Senate Democratic majority, Senate Majority Leader Harry Reid (D-Nev.) put the finishing touches on a year-long project of approving judges to lifetime appointments and installing long-stalled executive nominations. While Democrats outwardly emphasized their messaging votes on raising the minimum wage and pay equity over the past year, all along they were building the foundation for Obama to fill out his team — and the courts — in preparation for a possible Republican takeover.
As they stared down a brutal mid-term map in 2014 that led to the demise of their majority, Democrats worked furiously during the 113th Congress to approve 132 judges, the most since the last two years of Jimmy Carter’s presidency, according to aides. Reid surveyed the grim legislative relations with Republicans last fall, then steered his caucus to change the Senate rules to lower the filibuster threshold from 60 votes to a bare majority, destroying Republicans’ leverage and quietly chugging through 96 judges since the rules change and nearly 300 executive nominees just in 2014.
Now with GOP Leader Mitch McConnell (R-Ky) set to take over the Senate, the GOP’s leverage is back and Obama will never again experience the heady level of nominee productivity of the past two years. But Democrats believe their confirmation work was so productive that they have left the president’s cabinet and courts stocked as fully as could have been expected.
During the waning days of the lame duck, President Obama spoke personally to Reid about how to prioritize nominations, according to a source familiar with the talks, and White House officials emphasized the importance of confirming a dozen outstanding judges and Sarah Saldana to oversee Immigration and Customs Enforcement, Vivek Murthy to be surgeon general and Tony Blinken to be No. 2 at the State Department. All were ultimately confirmed.
“It’s a tremendous difference,” said Sen. Jeff Merkley of Oregon, a leading advocate of the Senate rules change. “The Senate was being used to undermine the executive and judiciary branches, completely betraying the constitutional vision of three critical branches of government. So, I think we’ve restored the right balance.”
Republicans, of course, vehemently disagree and have accused Democrats of court-packing and destroying the minority’s rights. As they left Washington for a much-needed winter break, the GOP had made no decision on the filibuster threshold for next year. But senior Republican senators are calculating how to handle the Senate’s unique role overseeing the Obama administration’s personnel and the nation’s courts, and how to balance their opposition to the president with their vision of responsible governance.
“There’s a real discussion going on in the Republican Party about: ‘How do we handle this?’” said Sen. Orrin Hatch of Utah, who is entering the presidential line of succession as Republicans’ most senior senator.
In some ways, Democrats’ last-minute push to approve dozens of Obama’s nominees (69 were confirmed in the last five days of the Senate’s session) is clarifying for Republicans. Democrats completely cleared the floor of judicial nominees, and many lower level and obscure positions in the executive branch were filled in bipartisan fashion. Murthy, Saldana and Blinken’s hot-button appointments were pushed through over Republican objections, ending several bitterly contested disputes over nominations and clearing a politically-charged backlog.
Now, Republicans have two key nominees to consider as they test their new majority: Loretta Lynch to be attorney general and Ashton Carter to be Defense secretary. Barring unforeseen circumstances or gaffes in their confirmation hearings, both are expected to be eventually confirmed, which will help set the narrative of McConnell’s envisioned governing majority.
From there it’s unclear what nominations that Obama will prioritize and how Republicans will handle them. But GOP leaders are rejecting calls from Sen. Ted Cruz (R-Texas) to block everyone non-essential to national security until Obama relents on his executive action to shield millions of immigrants from deportation.
“Nominees are going to be evaluated on their individual merits and those who represent, I imagine, the mainstream, are going to get approved. Just as people that can show that they’re capable and competent will be approved,” said Sen. John Barrasso of Wyoming, the No. 4 Senate Republican.
That’s not say to Republicans will roll over on immigration or nominees. The GOP is sure to use nominees as chits in broader negotiations with the White House and will prioritize doing something to attack the executive action ahead of the Feb. 27 expiration of Homeland Security Department funding.
But most members believe the most effective way to lash out at Obama is through immigration-related riders and restrictions on spending bills, rather than on Obama’s nominations.
“Confirmations ought to be based upon the need for that person to be confirmed, basically their qualifications,” said Sen. Jerry Moran (R-Kan.). “I would focus on the appropriations rather than the nominations. I think it’s more direct: The thing you’re trying to change, you actually change though appropriations.”
Still, it’s clear that the last day of the Senate’s work this year represents a highwater mark for Democrats that will be impossible to achieve under Republicans. As a result of a procedural misstep by conservatives and a lack of will to keep fighting Democrats into the holidays, Republicans approved 11 District Court nominees without dissent, capping the confirmation of a dozen judges in one day.
That came in addition to 15 other lame duck judicial confirmations, according to the Brookings Institution, totaling a record 27 lame duck judicial confirmations that cheered Democrats and incensed incoming Senate Judiciary Chairman Chuck Grassley (R-Iowa.)
“What we typically don’t do is report judges out of committee during a lame duck and also confirm them that same year,” Grassley said on the Senate floor as Reid plowed forward on judges. “I think I’ve had a pretty good reputation working across the aisle on a lot of things [so] that somebody would realize these nominees would get a fair hearing” next year.
Democrats did more than exploit their own rules change to confirm hundreds of nominees. They also seized on an agreement between Reid and McConnell that drastically lowered the amount of debate time for judges, which allowed the party to prioritize lifetime appointments to courts that are sure to eventually scrutinize legal actions against Obama’s regulatory agenda and the Affordable Care Act. During the lame duck, it would have been nearly impossible to confirm so many judges without this agreement.
That reform is set to expire in January and Democrats do not expect it to be renewed. Beyond that, Democrats have no idea how Obama’s nominees will be treated. Statistically, presidential nominees have proceeded in the last two years of a presidency, though at a slower pace. But today’s Senate has more filibusters and more bitter partisanship, leaving future confirmation outcomes in doubt.
“No idea, no idea,” Merkley said. “They’re having an intense debate on what they’re going to do. I don’t know what they’ve decided.”
