Sen. Lindsey Graham said that he would sue to invalidate the president's recess appointments if he could but that he likely didn't have legal standing to do so.
Despite significant deliberation, Senate Republicans are wrestling with how to devise a united response to President Barack Obama’s controversial recess appointments earlier this month.
Some Senators appear to be concerned that further blockades of nominees could give the president more ammunition for his narrative about GOP obstruction creating a do-nothing Congress.
“What can we really do [in the Senate]? We are probably not going to reverse these things,” Sen. Ron Johnson said.
The Wisconsin Republican added: “I don’t want to walk into any type of trap and playing into the president’s hand about a ‘do-nothing Congress.’ I don’t think that serves our interest well.” Johnson said that it was important for Republicans to make the case on the recess appointments to the public but without opening themselves up to attacks.
Still, there are advocates for fighting back against what they believe was an unconstitutional use of the recess appointment power. How Senate Republicans do that is still being decided.
While most Members were away from Washington for the winter holidays, Obama in early January appointed Richard Cordray to be head of the Consumer Financial Protection Bureau and filled three slots on the National Labor Relations Board, including one Republican NLRB position.
Republicans question the legitimacy of the appointments. They contend Congress was not technically in recess when the appointments were made because both chambers 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 bona fide sessions.
“There are a broad range of opinions in our party,” Sen. Chuck Grassley (R-Iowa), ranking member of the Senate Judiciary Committee, said today.
With no unified strategy, some Senators have threatened to hold up nominations, but it remains to be seen whether they could command the 41 votes needed to mount a filibuster without the support of GOP leaders.
At a Judiciary Committee hearing today, Grassley said that approval of nominations typically slows in a presidential election year, a situation known as the Thurmond Rule, for the late Sen. Strom Thurmond (R-S.C.).
“The historical practice has been for work to slow down a great deal during such years,” Grassley said.
Grassley cited comments made in 2007 by Judiciary Chairman Patrick Leahy (D-Vt.) that the rule typically kicks in around April of the election year.