Democrats May Block Nominees

Posted April 10, 2007 at 6:34pm

Angry Senate Democrats are mulling a two-pronged strategy to retaliate against the Bush administration for appointing three controversial figures to key executive branch posts during last week’s recess, including possibly shortening the August recess to no more than 10 days and blocking all future White House nominations.

The Democrats’ countermove is still in discussions, but sources say top Senate leaders already have begun eyeing their options and will meet to vet their next move once lawmakers are back in full swing today. Either way, the Democrats are looking to get the upper hand against the Bush administration after it made the appointments while Senators were on their spring break last week.

“The administration hasn’t heard the last of this,” said a senior Democratic Senate aide. “What they did — in particular with Sam Fox’s nomination last week — is absolutely outrageous. They managed to make a whole bunch of Members mad and it doesn’t bode well for future attempts to move nominations through the Senate.”

Senate Majority Leader Harry Reid (D-Nev.) and his fellow top Democrats are considering revamping the Senate calendar, which Reid already attempted to structure to avoid Bush recess installments earlier this year. Under past practice, the White House would refrain from making recess appointments unless the Senate was on break for more than 10 days, but Bush sidestepped that tradition with the naming of Fox as ambassador to Belgium, as well as two other controversial nominees.

As it stands now, the Senate has scheduled one-week recesses with the exception of the August break, which is currently slated to last a month. By shortening it to 10 days — and then having the Senate meet in a pro forma or non-voting capacity during the remaining two-week period — Senate Democrats may not avoid recess appointments altogether, but they would make it more difficult for Bush.

The Democratic aide said that change is “one of the ideas” being considered. It would provide that no recess spans more than those two weeks.

On Tuesday, Bush appointed former Mercatus Center Director Susan Dudley, an anti-regulation activist, to head the Office of Management and Budget’s Office of Information and Regulatory Affairs, as well as Andrew Biggs as the deputy commissioner of the Social Security Administration.

Neither Biggs nor Dudley had any chance of passing the entire Senate, although Homeland Security and Governmental Affairs Chairman Joe Lieberman (ID-Conn.) had planned on moving Dudley out of his committee this month.

Bush also appointed Fox to the Belgium post even though he had withdrawn the nomination just before the recess. Fox was expected to be defeated in committee, in part because he was one of the main financial backers of the Swift Boat Veterans for Truth, an organization created during the 2004 presidential campaign that attacked Sen. John Kerry’s (D-Mass.) record in Vietnam.

Senate Republicans, who have defended the recess installments, have been preparing for the Democrats to come back at the White House and said late Tuesday they expect the majority party to pull out all the stops to prevent the White House from getting its nominations through the 110th Congress. So far this year, the administration has sent some 197 nominations to the Senate for consideration ranging from high-profile Cabinet and judicial posts to and low-level, largely ceremonial, slots.

“Democrats are looking for any excuse — no matter how minor — to shut down the presidential appointment process,” said a senior Republican Senate aide. “No one should be shocked.”

If Democrats do plan to hold up Bush’s nominees, particularly his judicial picks, that would represent a shift from the first three months of the 110th Congress, as the Democratically controlled Senate so far has moved more than a dozen White House court picks with relative ease.

The White House is hoping to advance 17 circuit judges over the course of the 110th Congress, the average number approved during the final two years of the past three presidents.

“If they are moving, it’s hard for us to complain that they aren’t moving,” said a White House official, speaking on the condition of anonymity early Tuesday. “Most people are thinking that at some point there will be a meltdown, but we haven’t gotten there yet.”

In the past three months, the White House has won Senate approval for some 15 judicial nominations, including two high-level circuit court picks. Democrats and Republicans give credit to both sides, noting that Senate Democrats have worked quickly to hold hearings and allow votes on nominations, while Bush has opted against renominating some of last year’s most controversial picks that faced near insurmountable hurdles under then-GOP majorities.

What’s more, Reid and Minority Leader Mitch McConnell (R-Ky.) share the same goal as the White House that the chamber should approve at least one circuit court nominee each month for the first 17 months of the Congress (through mid-2008), when the countdown to the close of Bush’s lame-duck term begins in earnest. That rate has been met so far with the Senate’s approval in February of 9th U.S. Circuit Court nominee Norman Randy Smith, and in March with the confirmation of Thomas Hardiman for the 3rd U.S. Circuit Court.

And even with the attention focused on upcoming testimony from embattled Attorney General Alberto Gonzales in the U.S. attorney controversy, the Judiciary Committee has scheduled additional upcoming hearings on Bush’s judicial nominations, including today on several district nominees and Debra Ann Livingston, of New York, for the 2nd U.S. Circuit Court.

Democrats and Republicans alike say they aren’t sure where the minefields are as the Senate considers future judicial nominations, but several could potentially be troublesome, including Peter Keisler, who is nominated for the D.C. Circuit Court of Appeals, and 6th U.S. Circuit hopefuls Raymond Kethledge and Stephen Murphy. Conservatives are strongly behind the three picks.

Senate and administration officials acknowledge that Bush needs to work swiftly to vet his upcoming nominees and submit them to the Senate for consideration, a process that can take months of federal background checks. Getting judicial nominations formally submitted is just as important as the Senate giving those court selections fair consideration and up-or-down votes, both Republicans and Democrats say.

And notably, while Bush may be inclined to issue recess appointments for some of his outstanding executive nominations, federal judgeships are in a class of their own. That’s because circuit and district judgeships are lifetime appointments that require Senate confirmation.

A judge appointed without confirmation could only serve until the end of Bush’s second term, or January 2009.

With that in mind, the White House says it has no interest in picking a fight with the Democrats over its handling of judicial nominations. With so many other public clashes brewing between the parties, Bush officials aren’t interested in teeing up a new conflict over judicial confirmations.

“There’s a little bit of ‘pick your battles’ going on,” said the White House source. “There are lots of battles going on right now. We don’t need to do this yet. Let’s just keep it rolling as long as humanly possible and keep that flow going until it runs into a dam and leads to a backlog.”

The posture certainly is a break from the 109th Congress, when stalled judicial picks proved challenging and, at times, even debilitating to the Senate. It was less than two years ago that the chamber engaged in a showdown over the movement of Bush’s nominees during which Republican leaders sought to implement the “nuclear” option and avert Democratic filibusters on those choices.

The clash prompted the formation of the “Gang of 14,” a bipartisan group of Senators — seven Democrats and seven Republicans — who teamed up and struck a deal in May 2005 to sideline the nuclear option in exchange for allowing up-or-down votes on certain Bush nominees. The deal generally has held, and with the exception of a few controversial judgeships, largely has helped keep the nominations issue out of the headlines.

But GOP Senators already have made the idea of pushing conservative judges a key aspect of their 2008 platform, and Democrats have no interest in ceding ground to Bush on the heels of his recess appointments last week.

“Overall this doesn’t bode well for administration attempts to get their nominees through,” said the senior Democratic aide.

John Stanton contributed to this report.