Looking to test Republicans' resolve to block nominations, Senate Democrats are planning to hold votes on judicial and administration picks before the Presidents Day holiday.
The votes are an effort to smoke out any Republican retaliation for President Barack Obama's decision last month to make four controversial recess appointments, Senate Democratic leadership aides said.
Judiciary Chairman Patrick Leahy (D-Vt.) said he believes the level of partisanship on judicial nominations is at a level never before seen.
"In all the years I've been here, I have never seen anything like this; holding up people that had every single Republican and every single Democrat in the committee vote for them," Leahy said off the Senate floor, adding that the chamber must act to remedy the judicial vacancy rate.
"By this date in President [George W.] Bush's first term, the Senate had confirmed 170 federal circuit and district court nominations on the way to 205 and had lowered judicial vacancies to 46," Leahy said in a speech Tuesday. "In contrast, the Senate has confirmed only 125 of President Obama's district and circuit nominees, and judicial vacancies remain over 85."
The Democrats plan to hold votes on one package of judicial and administration appointees or to have votes on separate packages, the aides said, adding that they would include nominees with bipartisan support to ferret out ideological opposition.
Democrats see the votes as a way to gauge whether Republicans are prepared to filibuster nominations following Obama's move in early January to install Richard Cordray as the head of the Consumer Financial Protection Bureau and fill three slots on the National Labor Relations Board, including one Republican position.
Republicans have said the recess appointments were not constitutional, but they have struggled to devise a unified Conference response beyond joining legal briefs challenging the legitimacy of the appointments.
A GOP aide said the votes will be a test of nothing because Republicans have made no announcement on a unified response.
"We are not trying to send a message with this vote," the aide said. "Any nominee will be confirmed, or not, on their merits.
"Judges have nothing to do with jobs," the aide said, noting the Democrats should be looking for consensus on ways to improve the economy and put people back to work.
The aide also said the issue does not resonate beyond the Beltway with Americans who are focused on the economy.
"This has nothing to do with jobs outside the Beltway, and everything to do with jobs inside the Beltway," the aide continued. "Unfortunately, that is where the Democrats' priorities lie."
The aide also pointed out that the Senate last month approved Nebraska Supreme Court Judge John M. Gerrard to be U.S. District judge for the District of Nebraska. Judiciary ranking member Chuck Grassley (R-Iowa) said Gerrard's nomination did not get caught up in the fallout from the recess appointments because it had been scheduled for a vote before Obama acted in January.
Republicans questioned the legitimacy of the appointments and charged the White House with overreaching. They contend Congress was not in recess when the appointments were made because the Senate held short pro-forma sessions every three days during the holiday break.
The White House argues that the pro-forma sessions were a "gimmick" and didn't count as a session.
With Republicans divided on how to respond or retaliate, some Members have taken it upon themselves to threaten filibusters, while others have urged restraint to avoid being tagged as obstructionists.
Sen. Mike Lee (R-Utah) has threatened to slow down the nomination process and possibly other legislation. But other Republicans, such as Sen. Lindsey Graham (S.C.), believe there will be no slow down.
"I expect some of them to get through," Graham said Tuesday.
Democrats may test Lee's threat by including David Nuffer, Obama's nominee to be a U.S. District Judge for the District of Utah, in the package. Lee backs Nuffer's nomination.
Senate Majority Leader Harry Reid (D-Nev.) pioneered the use of pro forma sessions every three days as a way to prevent President George W. Bush from making recess appointments, but he has since indicated he backs Obama's January use of the recess appointments.
When asked, Reid has declined to say if he personally believes the Senate was in recess at that time. Instead he has reiterated his position that the president had no other choice.
Republicans chose to hold up Cordray's nomination over their dislike of the how the law set up the CFPB — something Democrats argued was unprecedented. Democrats also said that the appointments to the NLRB — another agency Republicans are not fond of — were needed to ensure that the agency would have a quorum to conduct business.
"It's a constitutional right the president has," Reid said at a press conference earlier this month. "They were basically giving the president no nominations. For example, they don't like a law we passed, so they are not going have any people to fill the [top] position to make that law effective."