Sen. Patrick Leahy said he believes the level of partisanship on judicial nominations is at a level never before seen.
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."