Senate’s Churn of Confirmations Brings Complaints of a ‘Legislative Graveyard’

WASHINGTON — The Senate confirmed its 40th circuit court judge on Wednesday, filling nearly a quarter of the circuit court system with conservative appointments under President Trump.

But while Senator Mitch McConnell, the majority leader, and his allies have celebrated the milestone in approving Kenneth Lee to the federal circuit, critics say the emphasis on judicial and administration nominations has derailed the Senate’s legislative agenda — and diminished the legacy of the upper chamber.

Senator Chuck Schumer of New York, the minority leader, on Wednesday denounced the shift, deploying a phrase that has gained popularity among Democratic lawmakers in recent days: “Leader McConnell has turned the Senate into a legislative graveyard,” he said. “It is time for Senator McConnell to return the Senate to the legislating body it once was.”

Last month, the Republican majority, using the so-called nuclear option, engineered a rules change that reduced debate time over nominees, a move that was met coolly by some in the party. But most Senate Republicans welcomed the change, intended to allow the chamber to work through a backlog of nominations.

Many voiced support for Mr. McConnell’s efforts to reshape the judiciary and block House legislation as a way of leaving a conservative mark.

The majority of the bills from the House, some say, are messaging bills passed more for political points than for legislative accomplishment. (Members of the Democratic majority say they are delivering on the will of the voters.)

“Sometimes if you’re not doing really big things, that can tend to be very, very divisive, you’re still providing a level of certainty to the American public that you’re not committed to just going down a philosophical highway on your own,” Senator Shelley Moore Capito, Republican of West Virginia, said in an interview.

“I agree with him,” she said of Mr. McConnell, “that setting our court system in the right direction with good, solid nominations is an important thing to be doing.”

Over all, few nominees have faced strenuous objections — despite some setbacks, including over Mr. Trump’s two preferred picks for the Federal Reserve, both of whom withdrew from consideration.

Mr. Lee is the latest in a series of young conservative jurists and administration appointees who have sailed through the Senate, sometimes over objections by the American Bar Association over their qualifications or accusations by activists who say the appointees traffic in racist or sexist remarks.

Mr. Lee, for example, was confirmed despite what Senator Dianne Feinstein, Democrat of California, deemed to be controversial positions on race, gender and civil rights. (In one 1994 op-ed written while he was at Cornell, he referred to multiculturalism as a “malodorous sickness.”)

By contrast, the number of roll call votes on legislation has dwindled to just over a half dozen in the last five months, including a measure to fund the government through September, a sprawling bipartisan land conservation package and a pair of rebukes of presidential power that were swiftly vetoed.

Even bills once considered to be relatively painless and bipartisan have faced roadblocks: Lawmakers have yet to resolve an impasse over billions of dollars in aid for communities and farmers devastated by hurricanes, floods and wildfires over the past two years.

And in the middle of escalating tensions with Iran and North Korea and sustained outrage at human rights abuses by Saudi Arabia, the Senate Foreign Relations panel has voted out of committee about a dozen largely symbolic bills, including resolutions recognizing the 198th anniversary of the independence of Greece and “supporting democratic principles in Bolivia.”

“There’s so much polarization that they don’t even try to compromise anymore, a bizarre state of affairs for an institution that has been traditionally known for debate, deliberation and compromise,” said Joshua C. Huder, a senior fellow at Georgetown University’s Government Affairs Institute.

“If we don’t see something happen in the next couple months, then you can probably expect this Congress not to do much policywise, other than a budget deal and a couple appropriations bills,” he added. “And that won’t get done on time.”

But Mr. McConnell, for his part, appears to have little concern about the lack of legislative agenda and has proudly fashioned himself as the “grim reaper” of progressive policies, first before a small group of constituents in Kentucky last month and then before a national stage.

“As long as I am majority leader of the Senate, I get to set the agenda,” Mr. McConnell said last week in an interview on Fox News, outlining his opposition to some of the most prominent progressive policies up for debate among the Democratic caucus. “That’s why I call myself the grim reaper. We will not have the Green New Deal and we will not have ‘Medicare for none’ as long as I am majority leader of the Senate.”

Democrats have begun to hurl the sobriquet back at Mr. McConnell, who is up for re-election in 2020.

“Senator McConnell has described himself as the grim reaper; he’s going to kill every bill that comes over from the House,” Speaker Nancy Pelosi of California said, slamming Republican inaction at an event on Wednesday meant to promote her party’s health care legislation. “The Senate is going to be hearing from the American people.”

Other experts who analyze the productivity of the legislative branch emphasized that the Senate still had time to outline an agenda — and that it was part of a trend that had merely accelerated under Mr. McConnell, particularly with a shorter debate time over nominees.

“It’s just surprising that they’re processing nominations and not doing other things,” said Anthony J. Madonna, who helps oversee the University of Georgia Congress Project. But he added that the laws that had been passed were more all encompassing: “It’s not just that they’re passing fewer laws, but they’re passing larger laws of the omnibus variety.”

Lawmakers also point to some of the more extensive proposals as areas for agreement: Mr. McConnell has promised a vote next week on the disaster relief package, and both chambers may be nearing agreement on issues like government spending, prescription drugs and trade, as well as robocalls.

“What we’re doing is perfecting the art of the possible,” Ms. Capito said.


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