President Barack Obama's effort to replace Supreme Court Justice Antonin Scalia will be the nomination fight of the year, but just below the surface lies a continuing battle in the Senate over nominations to lower courts, as well as federal departments and agencies.
Despite a slight thaw just before the Presidents Day recess — with Sen. Ted Cruz, R-Texas, lifting a blockade of several State Department nominations, including the president’s picks to be ambassadors to Norway and Sweden — many remain stuck. And while the Senate approved five new federal judges in recent weeks, another 17 are waiting confirmation.
"It was unacceptable for these nominees to face lengthy delays for purely political reasons at the expense of our safety. Unfortunately, this type of obstruction continues," Sen. Jeanne Shaheen, D-N.H., said in a statement.
The struggles over Obama’s nominees have largely been overlooked as the Senate moves forward on legislative fronts. A Supreme Court nomination battle, however, cannot be ignored. The question now is whether the friction over the high court will grind progress to a halt on both nominations and legislation.
Some analysts said they doubt much will move on either front given the Senate's tight calendar this election year.
"Even under the best of conditions, it was going to be a legislative dead zone,” says John J. Pitney Jr., a professor of politics at Claremont McKenna College in California.
Presidential election years, especially in the final year of a president’s eight-year tenure, are typically slow. Representatives and senators want to highlight differences with the other side and figure, optimistically, that they’ll get a better deal after the election, when a new president of their own party takes over.
That said, Senate Majority Leader Mitch McConnell, R-Ky., has pledged to pass 12 appropriations bills and other bipartisan legislation this year to demonstrate that the GOP-led Senate can be effective.
Jim Manley, a former spokesman for Senate Minority Leader Harry Reid of Nevada, said Democrats could throw a wrench in those plans if Republican refuse to consider Obama's Supreme Court nomination. That could include denying consent to bring votes to the floor, or even to hold committee hearings.
Current and former senior Democratic aides suggest that the looming Supreme Court battle could slow down confirmation for other nominations, but not necessarily block legislation with bipartisan appeal.
"There's a very different energy when you're focusing on nominations from when you're working on legislation," Michelle Jawando, the vice president for Legal Progress at the liberal Center for American Progress think tank told Roll Call.
Sen. Mike Lee, R-Utah, who is championing criminal justice reform, was optimistic that progress could continue in a bipartisan way.
"I am not at all convinced that that is going to doom, or even necessarily harm, our effort to achieve, our effort to pass significant criminal justice reform legislation. In some ways I think it could help," Lee said in a Thursday phone interview. "We’re going to continue to want to demonstrate that, notwithstanding our differences on a number of issues, there are still other issues where bipartisan agreements are possibility, and this is one of them.”
"This will be something else that we can point to, to demonstrate that the Senate is still working," Lee said.
Jawando, a former senior aide to New York Democratic Sen. Kirsten Gillibrand, also said she believes there's still time to get criminal justice through, but acknowledged that if a Supreme Court nomination does advance, as she is optimistic it will, it will suck up significant time. The Senate has a seven-week recess in the summer, then takes off again in early October to prepare for elections.
"There is only but so much capacity and floor time," Jawando said.
McConnell and Judiciary Chairman Charles E. Grassley, R-Iowa, are among those calling to wait for the November election as a referendum on the makeup of the court.
"We don't think the American people should be robbed of this unique opportunity. Democrats beg to differ. They'd rather the Senate simply push through yet another lifetime appointment by a president on his way out the door," the two lawmakers wrote in a Washington Post opinion piece.
In a speech Friday, Sen. Patrick Leahy of Vermont, Judiciary's ranking Democrat, was adamant that the Senate should consider the president's nominee.
"I have served in the Senate for more than four decades, and on the Judiciary Committee for 36 years ... " Leahy said in a speech before the New England First Amendment Coalition. "During my time on Committee, we have never refused to send a nominee to the full Senate for consideration. I expect Senate Republicans to uphold this bipartisan tradition for the next Supreme Court nominee."
Vice President Joseph R. Biden Jr., a former Judiciary chairman, suggested Obama and Grassley should meet to get a candid assessment of the reception that potential candidates would receive. Biden said he met then-President Ronald Reagan after the failed nomination of Robert Bork. They eventually landed on current Justice Anthony M. Kennedy, who Democrats are quick to point out was confirmed in an election year.
"I told him, 'Mr. President, I think that that person will have — suffer the same fate as Bork; this person I think would probably get nominated; that person would ... ' And you know, that's part of the advise and consent process," Biden said in an interview with MSNBC.
Voters are divided along party lines as to whether it should be Obama or his successor making the selection. A recent CBS News poll found the country split on that question 47 to 46 percent in favor of Obama making the move, which he has said he intends to make in the coming weeks.
Bridget Bowman and Shawn Zeller contributed to this report.
Contact Lesniewski at email@example.com and follow him on Twitter at @neilslesniewski.
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