Senate faces protracted floor fight over judges amid pandemic safety concerns

Senate Majority Leader Mitch McConnell’s (R-Ky.) plan to press ahead with executive branch and judicial nominees when the Senate reconvenes next week sets up a protracted floor fight with Democrats.

The partisan fight over what only a few weeks ago was expected to be routine Senate business comes at a time when congressional leaders are under pressure to come together to negotiate another round of coronavirus relief legislation

Rank-and-file members haven’t needed to be in the Capitol during the intense talks over coronavirus relief bills — which have mainly involved congressional leaders and senior administration officials. But votes on a backlog of nominees will require them to shuttle back and forth to the Senate chamber.  

Senate Democrats are warning McConnell to drop plans to churn through nominees who do not have any direct relevance to containing the pandemic and helping the economy weather the crisis.

They also complain that McConnell hasn’t yet given them any advance notice of what the agenda will be when senators come back next week. A senior Democratic aide said there’s been “no outreach from Sen. McConnell about what he plans to do or not do next week.”

A Senate GOP aide said McConnell’s office is expected to provide guidance Friday on the upcoming agenda.

Several senior members of Senate Minority Leader Charles Schumer’s (D-N.Y.) caucus have raised concerns about returning next week when the House is staying away from Washington on the advice of Congress’s attending physician.

“Rather than holding routine hearings, we need to address this public health emergency and the administration’s implementation of funding,” tweeted Sen. Dianne Feinstein (D-Calif.), the top-ranking Democrat on the Senate Judiciary Committee.

Senate Democratic Whip Dick Durbin (Ill.) warned it would be “dangerous and risky” to reconvene the Senate while the coronavirus pandemic is still raging.

Washington, D.C., reported 219 new coronavirus cases on Thursday, the most since early April.

McConnell told conservative talk show host Hugh Hewitt recently that he planned to resume consideration of judges as soon as the Senate reconvened after taking time away from Washington because of the pandemic.

“My motto for the year is leave no vacancy behind. That hasn’t changed. The pandemic will not prevent us from achieving that goal,” he said.

There are 15 judicial nominees now sitting on the Senate’s executive calendar.

Trump put pressure on the GOP leader to pick up the pace on nominations last month when he threatened to adjourn both chambers of Congress and invoke his power to make recess appointments.

The president’s claim to such powerful executive authority was quickly dismissed by some legal experts, but it got senators’ attention.

McConnell’s office put out a statement on April 15 revealing the GOP leader “had a conversation today with the president to discuss Senate Democrats’ unprecedented obstruction” of nominees “and shared his continued frustration with the process.”

“The leader pledged to find ways to confirm nominees considered mission-critical to the Covid-19 pandemic,” the statement read.

Republicans say some of the pending nominees, such as Brian Miller, the nominee to serve as special inspector general for pandemic recovery at the Treasury Department, are essential to handling the crisis.

Miller is scheduled to receive a Senate Banking Committee hearing on Tuesday.

Other nominees, however, are seen as less essential, such as Trump’s picks to serve on the Federal Reserve, Judy Shelton and Christopher Waller.

A Banking Committee markup of those two nominees had been discussed for Tuesday, but that is now getting postponed because of pushback from committee members who raised safety concerns, according to sources familiar with internal discussions.

Staff members of the committee had been alerted to a potential markup on Tuesday, according to sources, but a Banking Committee spokeswoman said Shelton and Waller were never formally put on the schedule.

Senate Republicans are determined to get many of Trump’s nominees confirmed and say Democrats should consider passing nominees by voice vote to speed the process and address safety concerns.

Mike Davis, a former Republican chief counsel for the Senate Judiciary Committee and founder of the Article III Project, a group that advocates for Trump’s judicial picks, said “the Senate is more than capable of continuing to safely perform its constitutional duties, including vetting and voting on judicial nominees.”

“If Senate Democrats are truly concerned about their safety then they could agree to voice-vote a package deal of these non-controversial nominees,” he added.

But liberal activists are urging Democrats to put up a fight, despite the extraordinary circumstances.

“The priority right now should be coronavirus legislation and how we actually shore up American workers going forward and also state and local governments. The idea that you would try to strike a deal with the majority leader at the same time he is telling states and cities they should go bankrupt is absurd,” said Neil Sroka, communications director of Democracy for America, a liberal advocacy group.

“I’m not sure why Democrats should be giving them an inch at this moment,” he added. “The idea that we’re going to give Republicans lifetime appointments for right-wing judges is the definition of insanity.”

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee, said Thursday that the safety concerns of senators shouldn’t hold up work on the Senate floor.

“I don’t begrudge a senator expressing their personal concerns, but that shouldn’t mean that the entire Senate ceases to function,” he said. 

“We’ve learned to socially distance and to keep separated,” he said. “This idea we’re going to hunker down and shelter in place for an indefinite period of time is just inconsistent with the reality of us needing to do our job.”

In the past, Senate leaders routinely negotiated and passed packages of nominees to save time on the floor, but that practice has died as partisan tensions have ratcheted up during Trump’s first three years in office.

Schumer came under pressure from liberal groups at the end of 2018 when he was reported to be negotiating on a package of judicial nominees.

He also agreed to speed up consideration of a group of Trump judicial picks in October of 2018 to give vulnerable Democratic incumbents such as Sen. Jon Tester (D-Mont.) and then-Sen. Claire McCaskill (D-Mo.) more time at home to campaign ahead of the midterm elections.

But Schumer still required 12 roll call votes on the Senate floor to blunt any potential criticism that Democrats were giving Trump picks an easy pass.

In August of 2018, Demand Justice, a liberal advocacy group, criticized Schumer for striking a deal with McConnell to speed up consideration of a batch of Trump judges.

“Trading this many lifetime positions away for a couple days back home in the dead of August is a metaphor for how myopic the Democrats’ approach has been at this dark moment in history,” Brian Fallon, the executive director of Demand Justice, said at the time.

“An entire branch of government is being lost for generations and Senate Democrats are willfully blind to it,” he said.