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Posted at 5:44 p.m. on Oct. 29, 2013
Seven skirmishes in the Senate confirmation wars are being fought more or less simultaneously this week.
By the time these tussles conclude — after a series of test votes that could stretch into next week — there’s a decent chance President Barack Obama and his Democratic front men will have emerged undefeated, or nearly so.
That would amount to a solid second victory for the president on top of this month’s triumph in the shutdown and default standoff, one he could bask in for a few days because the oppositional Republican House will be silent for the next week, in recess from Wednesday until after Veterans Day.
Advancing so many contested nominees so quickly would also mark an important turning point toward finishing the Senate’s year with a return to functionality — if not quite regular order. At a minimum, it would mean that senatorial nuclear winter won’t be setting in early this year because the Democrats were able to help the president put his stamp on the government without upending decades of precedent in their own workplace.
The first two rounds went to Obama with relative ease on Tuesday.
First, senators voted 62-37 to move beyond a filibuster and toward confirming Richard Griffin as general counsel for the National Labor Relations Board. Some Republicans derided his nomination as a trick maneuver by Obama, who was compelled to end Griffin’s contested recess appointment as a voting board member in the deal that averted July’s “nuclear option” showdown.
An hour later, Sen. Ted Cruz called off his effort to block Tom Wheeler from becoming chairman of the Federal Communications Commission, and Wheeler was confirmed late Tuesday. The Texas Republican wasn’t opposed because of Wheeler’s background as an influential lobbyist for telecommunications businesses the FCC regulates, but because the nominee wouldn’t initially commit to restraining the FCC’s authority to require disclosures about which independent groups are paying for political advertising on TV and radio.
After a full and frank discussion behind closed doors, Cruz said he was satisfied that such an effort was “not a priority” for Wheeler.
Those were relative undercards in this month’s nomination fight night, as were three others: Alan Estevez to be the No. 2 procurement official at the Defense Department, Katherine Archuleta to run the Office of Personnel Management and Jacob J. Lew for an array of boards’s seats that are always claimed by the Treasury secretary.
As with Wheeler, qualifications aren’t the sticking point for any of those nominees; each is being held hostage by a handful of Republicans because of an ancillary objection. And in the end, each of those manufactured fights will be settled off the Senate floor — or there will be a sufficient number of Republicans willing to abandon their colleagues and side with the Democrats to break these filibusters.
The other two nominees in this series are the main events. Senators may decide as soon as Thursday whether to clear the way for North Carolina Democratic Rep. Melvin Watt to become the principal federal mortgage regulator as head of Federal Housing Finance Agency — or to make him the first sitting member of Congress denied confirmation in 170 years, since the Senate rejected President John Tyler’s nomination of Rep. Caleb Cushing of Massachusetts for Treasury secretary.
The even more consequential showdown vote will decide whether prominent appellate litigator Patricia Millett gets a seat on the U.S. Court of Appeals for the District of Columbia Circuit. If not, three seats on the second most important federal bench in the nation will remain vacant, effectively maintaining the court’s working majority of Republican nominees.
Watt, now in his 11th and presumably final term as a North Carolina congressman, is the No. 4 Democrat on both the Judiciary and Financial Services committees, where he has had a strong hand in writing housing legislation for two decades. But many of his GOP critics say that, despite that expertise, he’s both too political and not well-versed enough in the intricacies of Fannie Mae and Freddie Mac to be entrusted with nearly unilateral power to regulate those mortgage giants. Other opponents concede they are ready to block Watt because doing so would prevent Obama from putting many of his pro-consumer housing policies in place.
In the end, Watt is banking on two factors bringing just enough GOP votes his way to survive. (That number will be five once Cory Booker of New Jersey is sworn in as the 55th Democratic caucus member Thursday.)
Some senators will decide they don’t want to set a problematic precedent for themselves — or their congressional successors — by declaring some jobs so complex that they should be off-limits to elected officials.
The other factor is that opposing a former Congressional Black Caucus chairman will open senators up to intimations of racist motives, a notion that leaders of four civil rights groups won’t likely rebut during a news conference Wednesday.
The argument against Millett is different. Republicans say there isn’t enough work for the D.C. Circuit to justify employing more than the current eight of its 11 authorized active judges. (There is a welter of statistics about pending, filed and terminated cases that give each side ample ammunition in this fight.) But what’s not in much dispute is that maintaining the status quo benefits the GOP: Although the active judges are now evenly split between presidential choices from each party, Republican appointees dominate the roster of semi-retired jurists who also help decide appeals.
The search for at least five GOP votes for Millett is concentrated among defense hawks and women. That’s because she would be something of a trailblazer on two fronts: She has argued 32 cases before the Supreme Court, more than all but one other woman, and would become by far the most prominent longtime military spouse in the judiciary. (Her husband, Robert King, spent 22 years in the Navy before retiring last year.)
Particular lobbying pressure is being applied to Republican Sens. Kelly Ayotte of New Hampshire (whose husband was an Air Force pilot for a decade), Mark S. Kirk of Illinois (a Navy reservist) and Lindsey Graham of South Carolina (an Air Force reservist). At least four other GOP senators — Susan Collins of Maine, Lisa Murkowski of Alaska, John McCain of Arizona and Lamar Alexander of Tennessee — have signaled they are ready to advance almost all judicial nominees past filibusters on the grounds that the blocking maneuver is overused.
If all goes according to plan, by the end of next week seven high-profile confirmations will have made it through the Senate, with fights over a pair of additional D.C. Circuit nominees postponed indefinitely. Obama, it appears, will only be willing to push so hard.