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September 1, 2015

Obama’s FCC, Labor Nominations Advance but Watt, D.C. Circuit Fights Loom (Updated)

Updated 6:39 p.m. | The Senate is starting to churn through a series of nominations this week, but trouble remains for both Rep. Melvin Watt’s pick to be the nation’s top housing finance official and the first of three D.C. Circuit Court nominees to come to the floor.

Sixty-two senators voted Tuesday afternoon to limit debate on the nomination of Richard F. Griffin Jr., to be the National Labor Relations Board’s general counsel, two more than needed to break a possible filibuster. The narrow margin for error underscored the reason Reid had to delay Monday’s vote over attendance.

Griffin was confirmed later in the day, with more on deck Wednesday. The results may vary, however.

For instance, the Senate confirmed two nominations by unanimous consent to the Federal Communications Commission, including that of chairman nominee Tom Wheeler. Sen. Ted Cruz had lifted a procedural hold on that nomination earlier in the day.

The Texas Republican made the decision following a meeting with the Democratic FCC nominee on Tuesday.

“Mr. Wheeler stated that he had heard the unambiguous message that trying to impose the requirements of the DISCLOSE Act, absent congressional action, would imperil the Commission’s vital statutory responsibilities, and he explicitly stated that doing so was ‘not a priority,'” Cruz said in a statement. “Based on those representations, I have lifted my hold on his nomination, and I look forward to working with him on the FCC to expand jobs and economic growth.”

Sen. John Cornyn, meanwhile, maintained objection to moving ahead with the nomination of Alan F. Estevez to the position of principal deputy undersecretary of Defense for acquisition, technology and logistics.

The Texas Republican’s office notes the hold is tied to long-standing opposition to the purchase of helicopters manufactured by Rosoboronexport, a Russian company, for use by Afghan forces. There’s been bipartisan criticism of the acquisitions practice.

Majority Whip Richard J. Durbin, D-Ill., criticized that particular hold.

“When it reaches a point that somebody sits on the calendar for a year, and this assistant secretary of defense is one of them, that is way beyond any opportunity for a senator to get a question answered,” Durbin told reporters. “It is just a method of stalling and harassing.”

Still, Estevez doesn’t seem to have much, if any, opposition to his actual nomination.

The same may be said for the nomination of Katherine Archuleta to head the Office of Personnel Management. Archuleta’s facing a Republican hold, confirmed by the office of Sen. David Vitter of Louisiana, over the agency’s rules regarding employer contributions for health care to members of Congress on the new Obamacare exchanges.

That’s the issue that’s led to the repeated appearances of a Vitter amendment that would block federal contributions to the cost of staff and member health benefits.

That’s not true of some of the names further down the line. The nomination of Watt to be the top housing finance official looked to be on the ropes as of Tuesday afternoon, with a senior Democratic aide already saying that vote wouldn’t come until after the swearing-in of Cory Booker on Thursday.

Judicial Nomination Test, Too

After trudging through the executive branch nominees, there will be one left in the batch: a federal appellate nominee praised by both sides of the aisle. Still, the confirmation of Patricia Ann Millett to a vacant seat on the D.C. Circuit remains a question amid Republican opposition over the number of judges on the court.

“Everybody seems to want to stack that court, Republicans and Democrats,” Sen. Lindsey Graham, R-S.C., said.

“The president has a lot of discretion to appoint judges. I think the Congress has the ability to say all right, one court is over … subscribed and we believe that it should be in other places,” Graham said.

“You’ve got to be careful about this circuit, because it does — it hears really all disputes basically between the people and the government,” Graham said. “There’s no accident that everybody wants their people on this court, because it’s the best way in theory to protect your administration’s executive policies.”

“It’s no accident that everybody’s trying to load this sucker up,” Graham said.

Of course, this isn’t a case of court-packing in the historic sense: that involved a bid to increase the number of seats on the Supreme Court to get more favorable judges seated, rather than just filling vacancies.

“They’re opposed to this nomination based on a manufactured argument about a court they claim has too many judges and not enough work,” New York Democratic Sen. Charles E. Schumer said at a news conference to outline Millett’s qualifications, noting GOP support for filling seats during the George W. Bush administration.

“Most of the cases are more complicated now than they were back then,” Schumer said. “Now that these are President Obama’s nominees, the tables have turned.”

Two additional D.C. Circuit nominations are expected to be ready for floor consideration by the time Millett’s cloture vote takes place.

Senate Republicans want to see the seats reallocated to other circuits. Graham said he would support confirming Millett to another federal appeals court vacancy, just not to one of three open seats that remain in D.C.

Republican Sen. John McCain, who helped negotiate the last deal to avoid a simple-majority procedural change, signaled opposition to Millett’s nomination.

Reid seemed in no mood to entertain questions about the possibility that a filibuster of Millett could lead to a reprise of the summer fights over the “nuclear option” of a simple majority change in handling nominees.

“I’m not going to be talking about hypotheticals,” Reid said, noting the Millett nomination was discussed during the day’s caucus lunch.

“The frustration on our side is very large. I would hope we don’t even have to consider it. There are only eight people on the court. She is a moderate in every sense of the word,” Schumer said.

Cornyn noted that the summer dispute didn’t pertain to judicial nominations.

“As you recall, the last threat to change the Senate’s rules did not include judicial nominations, and I think wisely so,” Cornyn said, adding that Judiciary Chairman Patrick J. Leahy of Vermont “knows that someday there will be another Republican president and the same rule … will apply to that. So, I don’t really take this threat of the nuclear option very seriously when it comes to judicial nominations.”

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