Senate majority leader Harry Reid is using his final days in power to confirm a series of controversial presidential nominees, with the result that Republicans are fighting about whether Texas senator Ted Cruz enabled Reid’s machinations by accident.
It’s an argument that pits a group of conservative senators – and their desire for a good weekend of messaging against President Obama’s amnesty – against the broader Republican conference, which was clinging to the hope that it could convince Reid to surrender his post as majority leader without first taking advantage of the nuclear option to confirm the presidential appointees.
The question is: Did Cruz — along with Senator Mike Lee (R., Utah), Senator David Vitter (R., La.), and Senator Jeff Sessions (R., Ala.) — err by keeping the Senate in session over the weekend? Several Republicans say they did, as Reid filed over 20 nominations on Saturday after initially offering to go into recess until Monday. Or are the unhappy Republicans just grousing because “these guys didn’t want to work over the weekend” (as one GOP senator puts it)?
“Some of the nominations that we had issues with, like the surgeon general, were not going to move forward,” Senator Jeff Flake (R., Ariz.) said Sunday. “Now they’re going to move forward.”
Flake’s comments imply that Reid wouldn’t have forced the nominations at a later point in the lame-duck session, which Lee thinks is incorrect.
“This is an outgoing Democratic Senate majority leader,” Lee told Fox News’s Bill Hemmer during a Monday morning interview. “It would have been political malpractice for him to adjourn for the year without getting these things through. I can guarantee you, Bill, not one person will be confirmed as a result of this that would not otherwise have been confirmed.”
Lee’s certainty derives in part from Reid’s statements and the procedural process that unfolded on Friday, when Senate minority leader Mitch McConnell offered to vote on the last remaining major pieces of legislation before adjournment (the cromnibus, the Terrorism Risk Insurance Act reauthorization, and tax extenders). Reid objected.
“Senator McConnell just generously offered to adjourn Senate for the year without processing any more nominees,” Reid spokesman Adam Jentleson tweeted early Friday afternoon. “Senator Reid of course objected.”
Later that afternoon, the Senate Secretary of the Minority advised Republicans to stop working on what’s known as the pairing process (when the Senate negotiates to confirm pairs of certain Republican and Democratic nominees in order to overcome objections) because Reid was moving forward with the nominees.
“We were told that the process to clear non-controversial nominations had broken down because Reid was determined to process twenty or so controversial nominations before we adjourned, by filing cloture on them if necessary,” a GOP Senate aide tells NRO.
Reid offered Friday evening to go into recess until Monday at 5 p.m., at which point members would come back to vote on the cromnibus. This would have required every Republican to agree to waive the rule requiring the Senate to wait 30 hours after the passage of a bill before voting for cloture. McConnell agreed and told his members they were done for the weekend. Senator Kelly Ayotte (R., N.H.), for instance, went home to see The Nutcracker with her daughter.
Aides to the Senate Republican rebels say that McConnell didn’t check with their bosses before sending the conference home, so their colleagues were surprised when they objected to the time agreement and forced everyone to return to the Capitol.
“I think it’s stupid for us to take a 72-hour recess with a trillion-dollar spending bill on the floor and we were not inclined to send a signal that we were going to let up, and that’s sending a signal that we were going to let up, giving a time agreement,” one Republican senator tells NRO.
Instead of going into recess, the four Republicans wanted to spend the 30 hours calling for Reid to stop blocking amendments to the cromnibus and allow them to vote on language that would block the implementation of Obama’s executive orders.
They didn’t expect Reid to cave, but the senators pushed ahead anyway. For one thing, they wanted to follow through on their pledge to try to delay the passage of any major legislation during the lame-duck session. For another, they were heartened to see, for the first time, Reid being pressured from the left to stop blocking amendments.
“Not only were we getting a lot of pressure on our leadership and others but liberal activists were pushing trying to get Elizabeth Warren’s amendment, also,” an aide to one of the senators says. “And so we were creating a lot of pressure for Harry Reid to do the right thing and allow amendments.”
Reid blocked the amendments, as expected, and used the next 30 hours to shepherd those controversial nominees through the procedural hurdles ahead of their final confirmation. When the 30 hours expired, Cruz unilaterally forced a vote that he could have forced even if he had accepted Reid’s Friday night offer: He raised a constitutional point of order against the bill.
There is some disagreement on the right as to whether this was a prudent move. Cruz raised the point of order to put the spotlight on President Obama’s executive immigration actions, which the Republican conference agrees are unconstitutional. By voting for the point of order, though, the senators would have been saying that the entire spending package was unconstitutional. That fact, along with frustration at the senators who forced the weekend session, led to a narrow majority of Republicans’ voting against the point of order.
If Reid’s offer had been accepted, he wouldn’t have been able to file the nominees until Monday evening, setting up cloture votes on Wednesday. It would have taken 46 hours of debate to process the nominees, according to Republican sources who suspect that Democrats would not have wanted to remain in session for that length of time.
Thus, most Republican senators believe that Cruz deprived them of their last, best shot to block some of the most controversial Obama nominees, such as Vivek Murthy, the incoming surgeon general, who supports gun control.
“It was frustrating because Republicans had been working the clock hard on a number of nominees and their misstep gave it all away to Reid and Obama,” one senior Republican Senate aide says.
That sentiment assumes that Reid might have agreed to leave some of Obama’s appointees unconfirmed simply because his members wanted a longer Christmas break. There are a few points in favor of that view: Admittedly, Reid himself complained Monday about wanting to go home; he often threatens to ruin weekends, only to cave at the last minute; and, even now, Republicans are still negotiating with Democrats to confirm some of the nominees quickly in exchange for leaving early. And the weekend fight failed to result in a vote on an amendment targeting amnesty, while making it easier for Democrats to confirm Obama’s nominees and still enjoy a long Christmas break.
But it’s also true that Reid would have had the time to make the Senate vote to confirm every pending nominee, if he were willing to put up with some inconvenience. Republicans don’t have the power to block the nominees if Reid is willing to stay in session long enough – regardless of whether Cruz and company had done what McConnell wanted over the weekend.
“We will adjourn whenever Reid says we will adjourn — and that means after getting his nominees,” a Senate aide says.
One of the senators who forced the weekend session makes a similar point: “To the extent it makes any difference, we’ll get to go home earlier than we would have otherwise because people are going to be grumpy.”