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The Senate today approved Cathy Ann Bencivengo to be a U.S. District Judge for the Southern District of California in a vote Senate Democrats hoped would ferret out a Republican response to four controversial recess appointments made last month.
“After all of the Republican’s bombastic rhetoric, they backed down,” said a Senate Democratic leadership aide after the 90-6 vote confirming Bencivengo.
Democrats see upcoming nomination votes as a way to test whether Republicans are prepared to filibuster President Barack Obama’s nominees following his decision in early January to use his recess appointment powers to install Richard Cordray as the head of the Consumer Financial Protection Bureau and to fill three slots on the National Labor Relations Board.
Republicans question the legitimacy of the appointments and charged that the White House had overreached. 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 bona fide session because the vast majority of lawmakers were out of town.
Some Republican Senators have threatened to hold up Obama’s nominees, but a unified response to the recess appointments remains elusive. Many are wary of opening themselves up to criticism of being obstructionists, which is the narrative Obama is using to make the case for a second term.
“We are still waiting for their response,” the Democratic aide said noting Republicans’ vocal consternation over the appointments.
The Democratic aide also said that with approval of this judge, it would be difficult for Republicans to oppose future nominees over the recess appointments.
A Republican aide said Democrats appear to be intent on using the nomination process to score political points.
Republicans gave unanimous consent to bring up the nomination and did not use procedural maneuvers to draw out debate or to filibuster.
“If people have unanimous consent to get a vote, they’ll get a vote,” the GOP aide said.
“Republicans aren’t taking the bait,” the aide said, adding that Democratic leaders should be more concerned with helping the economy recover and creating jobs.
Sen. Mike Lee (R-Utah.), voted against Bencivengo, has been the one of the most vociferous opponents to the recess appointments and said that it’s a case of standing up for the Constitution and the separation of powers.
“This president has enjoyed my cooperation up to this point. I’ve voted for many if not most of his nominees,” Lee said on the floor. “That cooperation can’t continue — not in the same way that he has enjoyed it up until this point in light of the fact he has disrespected our authority — within this body. He’s disrespected the Constitution.”
Still, Lee apparently did not object to voting on Bencivengo, considering unanimous consent requires the OK from all 100 Senators.
The Democratic aide said that a vote on a package of more nominations could be in the offing in the near future. Senate Democrats hoped to have votes on such a package — either one package of judicial and administration appointees or two separate packages — before the Presidents Day recess, but no final decisions have been made.