Federal Courts and Nominations

Obama’s Nominations Launch Utah Freshman Senator Lee on a One-Man Crusade

By Laura Litvan

Never in his brief U.S. Senate career has Mike Lee, a Tea-Party backed freshman from Utah, attracted such attention. In the past month, he was the subject of the president’s weekly radio address, testified before a House panel and appeared on television news programs five times.

Lee, a Republican, is the only senator fighting confirmation of all of President Barack Obama’s executive and judicial nominees, after the president angered party members by appointing officials while Congress was on a holiday break. Through his Jan. 4 action, Obama bypassed Senate confirmation of his choices and installed the first U.S. consumer financial watchdog, a position Republicans want to abolish. He also appointed three members to the National Labor Relations Board.

“I can’t and won’t simply pretend as if nothing has changed,” Lee, a 40-year-old lawyer elected in November 2010, said in an interview. “Something has fundamentally changed in the balance of power between the president and the Senate. And he has shown a certain disrespect for our confirmation prerogative.”

As Republicans seek to take control of the Senate in the November election, Lee might end up posing more of a challenge to his party than to the Democratic president. Obama is accusing Republicans of obstructionism, playing off record-low congressional approval ratings. The question is whether other Republicans will join Lee or hold back and let him promote himself as a champion to the party’s right wing.

Low Approval

“Given the low approval ratings for Congress, there’s some risk,” said Julian Zelizer, a history professor at Princeton University in New Jersey. “More obstruction can actually backfire” for Republicans, he said. A Feb. 2-5 nationwide Gallup poll of 1,029 adults showed public approval of Congress fell to 10 percent, a record low.

Lee said he’ll do everything he can to oppose Obama’s nominees, though any senator’s ability to stop confirmation is limited. He can deny Democrats the unanimous consent agreements needed to speed up floor votes on nominations and can place “holds” on them. As a member of the Judiciary Committee, he also can slow the advancement of nominees through the panel.

The Constitution allows the president to make appointments without Senate confirmation when the chamber is in recess. Republicans maintain that Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau and three members to the labor relations board were unlawful because the Senate held brief sessions every three days during the holiday break.

FDIC, FTC Officials

The Senate has confirmed four district court judges and one appellate judge since reconvening in late January. Other pending confirmations include the U.S. comptroller of the currency, the chairman and vice chairman of the Federal Deposit Insurance Corp. and two Federal Trade Commission members.

So far, Republican leaders are supporting Lee’s right to react as he wishes though they aren’t joining him in seeking to block all nominees. Senator John Cornyn of Texas, chairman of the National Republican Senatorial Committee, said the party is trying to find a “measured and appropriate” response to the appointments and shouldn’t play into the president’s narrative.

Obama reacted quickly after Lee took the Senate floor Jan. 26 to say he would resist confirmations unless the president would rescind his recess appointments.

“‘We were sent here to serve the American people,” the president said two days later in his weekly national radio address. “They deserve better than gridlock and games. One senator gumming up the works for the whole country is certainly not what our founding fathers envisioned.”

Clerk to Alito

Lee is a former law clerk to Supreme Court Justice Samuel Alito and counsel to former Utah Governor Jon Huntsman. Lee won his Senate seat after Tea Party support helped him defeat three- term Republican Robert Bennett at a state party convention.

His father, Rex Lee, was U.S. solicitor general under President Ronald Reagan and the founding dean of Brigham Young University’s law school. Lee’s older brother, Thomas Lee, was appointed to the Utah Supreme Court in 2010.

Rex Lee argued 59 cases before the U.S. Supreme Court (1000L), and Mike Lee said attending argument sessions beginning at age 10 inspired his interest in government.

While Lee grew up mostly in Provo, he lived for several years in McLean, Virginia, three doors down from Democratic Senator Robert Byrd of West Virginia. Lee’s Mormon family’s monthly “home teacher” was Senate Majority Leader Harry Reid, a Nevada Democrat and fellow Mormon who was a House member at the time. Lee was close friends with Reid’s son, Josh, and spent plenty of time at the Reid household, he said.

‘First Democrats’

“They were probably the first Democrats I ever knew really well,” he said. Lee said he learned from the Reids that “if I was going to tout the virtues of Ronald Reagan and my admiration of him, I had to be prepared to defend myself.”

Lee is working to boost his clout in conservative circles in a way similar to Republican Senator Jim DeMint of South Carolina, whose political action committee helped bankroll Tea Party candidates in 2010. Lee’s Constitutional Conservatives Fund raised $31,260 at the end of last year, compared with the $4.36 million DeMint’s PAC brought in.

In October, Lee asked the Federal Election Commission to let his PAC create a separate super-PAC to take unlimited donations from corporations, unions and individuals. The FEC unanimously rejected his request on grounds that federal law bars unlimited giving to federal candidates.

‘Progressive’ Constitution

Critics say that’s not his only overreach. Doug Kendall, president of the Constitutional Accountability Center, a Washington group that calls the Constitution a “progressive” document, said Lee highlights portions that support his philosophy while seeking to alter or reinterpret elsewhere in the document. Kendall pointed to Lee’s push last year to bar automatic U.S. citizenship to babies born in this country when their parents are illegal immigrants.

“His muscular, if completely erroneous, assertion of constitutional support for the Tea Party’s agenda has made him a hero in conservative political circles,” Kendall said. “His very career has depended upon politicizing the Constitution.”

Sal Russo, political director of the Tea Party Express, disagreed.

“He’s willing to stand up against the tide, and do the right thing and say the right thing, even if in the short run it might not be politically popular,” Russo said.

‘Cannot Go Unchecked’

Since calling for a confirmation battle, Lee has appeared twice on CNN and Fox News, and once on Fox Business, to discuss his stance. He testified Feb. 1 before the House Oversight and Government Reform Committee, saying Obama’s assertion of power “cannot go unchecked.”

Lee’s Senate Republican colleagues are more circumspect about nominations.

“What I’d like to do is consider each appointment on its merits,” said Senator Richard Shelby, the top Republican on the Banking Committee, which will consider two Federal Reserve Board nominees.

Some Republican senators up for re-election in November have distanced themselves.

“That’s not something I would do,” said Senator Scott Brown, a Massachusetts Republican, of Lee’s quest to block confirmations.

Reid said Feb. 17 he will urge Obama to make more than 50 executive-branch recess appointments unless the Senate takes “significant action” to advance nominations before an April recess. In an interview, Reid warned of election-year repercussions if other Republicans follow the freshman senator.

“I think it’s the worst time for the Republicans to be talking about stopping things,” the majority leader said.

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