Obama turns tables on GOP: no compromise on judicial nominations

President Obama and congressional Democrats are picking fights on student loans and on judicial nominations with their erstwhile GOP tormentors, leaving Washington in the upside-down position of Republicans calling for bipartisan negotiation and Democrats driving the hard lines.

Such hardball tactics may hurt Mr. Obama’s already shaky relationship with congressional Republicans, particularly those compromise-minded lawmakers in the Senate, that will be key to passing his agenda on immigration and resolving the nation’s long-standing fiscal impasse.

“I preferred it when he sat for dinner with Republicans and said, ‘How can we fix the debt?’ I prefer it when he sits down with eight [senators], Republicans and Democrats, and says, 'How can we fix our immigration system?’ ” says Sen. Lamar Alexander (R) of Tennessee, a senator who has dined with the president to discuss fiscal reforms. “I don’t like it when they invent crises as a way of bullying senators. And it won’t be productive for him and it won’t be productive for the country.”

Obama stood by a trio of nominees for the D.C. Circuit Court in a photo op in the Rose Garden Tuesday and excoriated Republicans for “unprecedented” blockage of his judicial appointments.

“For the good of the American people,” Obama said. “It has to stop.”

Later in the day, Senate majority leader Harry Reid (D) of Nevada kept up Democrats’ steely demeanor. Asked if Senate Democrats were interested in negotiating with House Republicans over a fix to subsidized student loans, which are set to double at month’s end, Senator Reid was direct.

“I'm not looking for a compromise,” he said. “I'm looking for passing our bill.”

That Obama and Reid would take such a strong stand on these issues is peculiar, in some ways, given the facts on the ground. On student loans, both sides are close, at least conceptually, to a compromise. Meanwhile, on judicial nominations, the numbers give a mixed picture on whether Obama's picks have, in fact, been unfairly treated by the Senate GOP minority.

In May, Republicans passed a fix that would peg the interest rates on student loans to the Treasury Department’s cost of borrowing over a decade – a proposal similar in many respects to one offered in Obama’s own budget proposal. They said there was room for compromise.

But Democrats want to keep student loan rates at their current levels for a handful of years by eliminating tax breaks for the wealthy – which they know is a nonstarter for the GOP-led House.

And so the Senate, Reid said, will vote on both Republican and Democratic student loan proposals on Thursday with little chance of either side bending in the meantime.

On judges, it’s true that Republicans have stymied a D.C. Circuit Court nominee, Caitlin Halligan, for reasons that many legal observers felt were largely about her political leanings and not about her judicial qualifications. But recent studies suggest that the treatment of Obama’s nominees has not been too far outside the recent historical norm.  

Obama’s 80.5 percent approval rate for all his first-term judicial nominees to district and circuit courts is better than the approval rate for George H.W. Bush’s nominees (77.4 percent) and not far behind the rate for Mr. Clinton’s nominees (83.7 percent), according to the Congressional Research Service. 

Furthermore, Republicans say the president’s volume of nominations has not kept pace with the total number of slots open. According to CRS, Obama is the only president of the past five to see the number of district court vacancies increase during his first term (if newly created judgeships are taken out of the equation).

On the other hand, Obama’s judicial nominees waited an average of 228 days between their nomination and confirmation through May of this year, according to an analysis by the American Constitutional Society. That’s about 50 percent longer than George W. Bush’s nominees waited.

Obama cites an even starker figure, saying that his nominees have waited three times as long as George W. Bush’s nominees. But the administration's calculation reflects the time between when nominees were approved by the Senate Judiciary Committee and when they were approved on the floor of the Senate.

Thus, Republicans point out it's the Senate’s Democratic leadership that controls when nominees will land on the body’s legislative calendar – thus, they say, the problem, in fact, is poor management by the Senate Democrats. Democrats counter that Republican holds on particular justices hold them back while perpetual filibuster threats snarl all Senate business, making scheduling votes on judges a difficult task and squeezing the amount of time available to do any work to a minimum.

What’s at stake with all the congressional hardball?

Senate Democrats frustrated by the delay on judges have threatened to revisit a months-old compromise on Senate rules. They say they could put in play the “nuclear option” – changing the Senate’s rules with only a bare majority vote to essentially end the power of the filibuster.

The results of such a move would mean major upheaval in the tradition-bound US Senate. Had the Senate’s Republican leadership given in to the nuclear urge in 2005, “the upshot would have been that the Senate would have ceased to be the place it had always been – a place in which collegiality was the order of the day and each senator had as much power as any other to dictate the flow of events within the institution,” wrote law professors Michael Gerhardt and Richard Painter in a 2011 analysis for the American Constitution Society.

Then, there’s the question of whether the White House and Congress can, in fact, come to an accord on student loan rates before they expire.

And finally the president’s tone may risk the fragile relationship the he has attempted to build with some Republican senators.

“Why didn’t he just send us three names” without the lecture? wondered Senator Alexander, who worked in a bipartisan group to head off a rules showdown earlier this year. “It’s unpresidential. It’s embarrassing for me.... He’s losing any capacity he’s going to have for Republican support for important issues by these kind of tactics. And that includes me.”