Post-Shutdown, GOP Finds New Fight Against Obama's Nominees

WASHINGTON – The confirmation wars erupted again in the Senate last week with Republican lawmakers coalescing behind opposition to two White House choices, leading to renewed speculation that Democrats may attempt to alter the chamber’s filibuster rules.

In separate votes, Republicans blocked votes on the nominations of Rep. Mel Watt (D-N.C.) to head the Federal Housing Finance Agency and attorney Patricia Millett to serve a judgeship on the U.S. Court of Appeals for the D.C. Circuit.

And the filibustering is unlikely to end with these two nominees. Sen. Rand Paul (R-Ky.) already has announced he intends to block the confirmation of Janet Yellen as Chair of the Board of Governors of the Federal Reserve System unless his legislation to require greater scrutiny of the agency receives consideration.

Sen. Lindsey Graham (R-S.C.) has threatened to delay all White House nominations – including Yellen’s -- until the Obama administration permits witnesses to provide information about the 2012 attack in Benghazi, Libya, in which four died, including Ambassador Chris Stevens. And there remain two additional picks to the D.C. Circuit Court pending – both considered more controversial than Millett.

The GOP revolt has once again raised questions about the use of the filibuster, which, when applied, requires legislation or a nomination to acquire 60 votes in the 100-member upper chamber before a vote can be conducted.

Both Watt and Millett drew enough votes to win confirmation in a majority vote but neither proved able to reach the 60-vote threshold. Sen. Pat Leahy (D-Vt.), chairman of the Senate Judiciary Committee, characterized Millett as “an outstanding nominee who deserves to be treated on her merits” and said GOP opposition could warrant a change in the rules.

“That is not a change that I want to see happen but if Republican senators are going to hold nominations hostage without consideration of their individual merit, drastic measures may be warranted,” Leahy said. “I hope it does not come to that.”

Senate Democrats and Republicans have been butting heads over the filibuster of White House nominations for years. The sides agreed to some modest rules changes at the outset of the 113th Congress intended to make it easier to work around the delaying tactic, but Senate Democratic Leader Harry Reid, of Nevada, and other Democrats remain irritated over GOP efforts to block presidential nominees. Reid considered adopting the “nuclear option” – changing Senate rules to repeal the filibuster by simple majority vote – in July when the GOP stalled the nomination of Environmental Protection Agency Administrator Gina McCarthy and others but the two sides reached a still-shaky, last-minute agreement to keep it in place after certain concessions.

Reid expressed contempt for Republican maneuvers over Watt and Millett but pulled up short of calling for any change.

“I will exercise my right as majority leader to reconsider these nominations at some point in the very near future,” Reid said. “I hope my Republican colleagues will reconsider their continued run of unprecedented obstructionism. Something has to change and I hope we can make the changes necessary through cooperation.”

In both cases, Reid said, Republicans “are serving the Tea Party instead of their constituents. Americans of all political stripes want their leaders to put ideology aside in common-sense cases like these and work together to get things done.”

Republicans oppose Millett and Watt for different reasons. Outside conservative groups, like the Club for Growth, oppose Watt not so much because of his qualifications, or lack thereof, but because they despise the Federal Housing Finance Agency. The group, led by former congressman Chris Chocola, wants to privatize two organizations it oversees – Fannie Mae and Freddie Mac – and then shut it down.

Senate rejection of a sitting member of Congress is extremely rare. No nominee for a cabinet position, for instance, has failed to gain approval since 1843. The FHFA isn't a cabinet-level position, but the move to oppose Watt led Reid to nevertheless call it unprecedented.

There were questions about Watt’s qualifications. Sen. Bob Corker (R-Tenn.) expressed doubt that Watt holds the technical aptitude for the job.

“I have said from day one that a technocrat, not a politician, should lead the FHFA, the regulator charged with overseeing the $5 trillion portfolios of Fannie Mae and Freddie Mac,” said Corker, a member of the Senate Banking, Housing and Urban Affairs Committee. “I hope the president will nominate a qualified technocrat with the expertise to play a constructive role in winding down Fannie and Freddie and modernizing our housing finance system.”

That view was further supported by Senate Republican Leader Mitch McConnell, of Kentucky.

“America needs someone with technical expertise and experience to run Fannie and Freddie's conservator and ensure that we don’t repeat the same mistakes that led to the last financial crisis (of 2008),” McConnell said. “And taxpayers need someone who will protect against future bailouts.”

Jay Carney, President Obama’s press secretary, called the filibuster “enormously disappointing” and said the White House has no intention of nominating anyone in Watt’s stead.

“We know he’s qualified and we know he would do a good job and there’s a heck of a lot of important work that needs to be done in that agency and Mel Watt needs to be in that job so that this work can move forward," Carney told reporters.

The Millett nomination is more complicated. McConnell characterized her as “no doubt a fine person – this is nothing personal.” But the D.C. Circuit as currently constituted has eight judges -- four appointed by Republicans and four appointed by Democrats. Three vacancies exist and Republicans charge the Obama administration wants to fill them only to arrange for favorable judicial outcomes.

Obama has managed to place only one judge on the D.C. Circuit during his five years in office. Last May the Senate confirmed Sri Srinivasan to an open seat -- the panel’s first new judge since 2006. The White House withdrew the nomination of Caitlin Halligan in March, ending a nomination process that lasted more than two years in the face of Republican opposition.

Sen. Chuck Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee, insists that the current caseload “simply doesn’t justify adding additional judges to this court, particularly when additional judgeships cost approximately $1 million per year, per judge.”

In terms of raw numbers, the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals. In 2005, that number was 1,379. Last year, it was 1,193, a decrease of 13.5 percent.

“The bottom line is this -- the objective data clearly indicate the D.C. Circuit caseload is very low and that the court does not need any additional active judges,” Grassley said.

The only reason Obama is looking to fill the vacancies, Grassley argued, is to basically stack the deck. The D.C. Circuit is considered second only to the U.S. Supreme Court in terms of importance, issuing rulings on cases involving the federal government, including rulings on regulatory measures. Any Obama appointments could potentially shift the panel’s judicial philosophy more toward the satisfaction of the White House.

“It is difficult to see why we would be moving forward with additional nominations to this court, especially in a time when we are operating under budget and fiscal constraints,” Grassley said. “Unfortunately, the justification for moving forward with additional D.C. Circuit nominees appears to be a desire and intent to stack the court in order to determine the outcome of cases this court hears. It is clear that the president wants to fill this court with ideological allies for the purpose of reversing certain policy outcomes.”

Leahy maintains it’s impossible for the president to “pack” the D.C. Circuit when all he’s attempting to do is fill vacancies – some of which have been open for years.

The D.C. Circuit doesn’t face the smallest caseload, Leahy said. That distinction falls to the 10th Circuit Court of Appeals, in Denver.

“Despite the lower caseload on the Tenth Circuit, the Senate has continued to confirm nominees to that court without any complaints from Republicans about the workload,” Leahy said.

Regardless, Millett fell short of the 60-vote threshold, 55-38. Liberal advocacy groups, like People for the American Way, derided the Republican filibuster, saying the GOP is practicing “scorched earth” politics.

"The GOP's unprincipled blockade of D.C. Circuit nominees is unprecedented, and it's shameful," said Marge Baker, PFAW's executive vice president. Republicans, she added, are keeping the president “from fulfilling his Constitutional obligation to fill existing vacancies on the critically important federal courts."