The U.S. Senate’s confirmation of a federal judge may be one of the last of President Barack Obama’s nominees cleared as Republicans consider whether to retaliate against his recess appointments.
The 74-16 vote Monday to confirm John M. Gerrard as a U.S. district judge in Nebraska had been scheduled prior to Obama’s Jan. 4 recess appointment of a consumer financial watchdog, Richard Cordray, and three members of the National Labor Relations Board.
Those appointments may “adversely” affect action on 78 other nominations pending before the full Senate, “if they go at all,” said Senator John Barrasso of Wyoming, a member of the Republican leadership.
Republican senators, who cast their first vote of the year on Gerrard, haven’t talked about nominations as a group or decided how to respond to the recess appointments, said Senator Jon Kyl of Arizona, the second-ranking Republican leader. Senators will discuss their response at a Jan. 25 retreat, Barrasso said.
The Constitution gives presidents the power to make appointments without Senate confirmation when the chamber is in recess. Republicans say Obama’s Jan. 4 appointments were unlawful because the Senate was holding brief pro-forma sessions every three days during the holiday break.
The Senate needs to take “some action in a tangible way” to show it isn’t giving in to the recess appointments, Senator Jeff Sessions, an Alabama Republican who serves on the Judiciary Committee, said in an interview.
“I can’t say that delaying other confirmations wouldn’t be some of the action that would be considered,” Sessions said.
Senator Tom Coburn, an Oklahoma Republican and member of the Judiciary Committee, said he thought the Cordray nomination should be challenged in court, not by senators holding up judicial nominations. “I think it violated the Constitution, and there ought to be a lawsuit over it rather than a reaction to it,” he said.
Senator Charles Grassley of Iowa, the top Judiciary Committee Republican, said he wasn’t attempting to interfere with consideration of Gerrard’s nomination because the vote “was locked in” before Obama made the recess appointments.
“I am not going to hold this nominee accountable for the outrageous actions of the president,” Grassley said in remarks prepared for delivery on the Senate floor.
Gerrard, 58, who served on the Nebraska Supreme Court since 1995, received bipartisan support from his two home-state senators to become a federal judge.
Democratic Senator Ben Nelson appointed Gerrard to the state’s highest court while serving as governor. Republican Senator Mike Johanns said he would “do everything I possibly can to try to bring his nomination to a vote,” while introducing Gerrard at his Judiciary Committee confirmation hearing last September.
Other Obama nominees awaiting votes in the Senate include 18 judicial picks and candidates for comptroller of the currency, two spots on the Federal Trade Commission and two slots on the Federal Deposit Insurance Corp.’s board.
Eighteen other judicial nominees are being considered by the Judiciary Committee, according to Erica Chabot, a committee spokeswoman.
Retaliation against judicial nominees may make it harder for Obama to reduce the 80 vacancies on the federal bench at the end of 2011, or 25 more than when he took office, said Russell Wheeler, a scholar at the Brookings Institution, a research group in Washington.
The Senate confirmed 64 judicial nominees in 2011, bringing the total since Obama took office to 124, compared with 168 during the first three years of George W. Bush’s administration, Chabot said.
Democratic lawmakers say Republicans have unnecessarily delayed votes even on non-controversial nominees who received unanimous support in the Judiciary Committee.
Republican lawmakers say Obama is to blame for moving too slowly on nominations early in his tenure. They also point to the fact that more judges were confirmed in 2011 than in the previous two years combined, even after Republicans won more seats in the Senate.
With assistance from Kathleen Hunter in Washington.