Democrats worry GOP could use delay tactic against Supreme Court nominee

Republican members of the Senate Banking Committee, led by Sen. Patrick J. Toomey (Pa.), did not attend Tuesday’s planned meeting in protest of Democrats’ intention to advance Sarah Bloom Raskin, Biden’s nominee for vice chair for supervision at the Fed, citing concerns about her work for a financial technology start-up, denying Democrats a majority quorum.

Raskin was among six Biden nominees who were set to be advanced to a floor vote who are now sitting in limbo because of the boycott. Banking Committee Chairman Sherrod Brown (D-Ohio) made clear Wednesday that Democrats have no plans to separate Raskin’s confirmation from the others, which include a new four-year term for Fed Chair Jerome H. Powell.

“If Toomey gets his way on this, it’s the way they will stop nominee after nominee after nominee: ‘Sorry, they didn’t answer right, so we’re not going to show up and provide a quorum,’ ” Brown told reporters Wednesday. “You can’t govern that way.”

The GOP boycott comes as Biden prepares to make the single most consequential and high-profile nomination of his presidency so far: a successor for Supreme Court Justice Stephen G. Breyer, who announced last month that he would retire once his replacement is confirmed.

Asked if he was concerned that the GOP boycott tactic could expand to that nomination, Brown said, “I think this could set a precedent that could lead to that.”

Brown and other Democrats said this week that it was unclear what they could do to get around the boycott tactic given the evenly divided Senate and the set of rules that govern committee procedures.

The Senate has operated for more than a year with a 50-50 split between the parties. Democrats hold majority control with Vice President Harris’s tiebreaking vote, plus a delicately negotiated power-sharing agreement that gives Senate Majority Leader Charles E. Schumer (D-N.Y.) and Democratic committee chairmen agenda-setting power and guarantees the ability of a united Democratic caucus to advance legislation to the floor and confirm nominees.

But nothing in the agreement bars Republicans from employing the committee boycott tactic, which takes advantage of a Senate rule that requires committees to have a physical majority present to conduct business. With committees split evenly under the power-sharing deal, at least one Republican member must attend meetings to advance legislation or nominees.

The tactic was used only occasionally in 2021. Republicans on the typically sleepy Small Business and Entrepreneurship Committee launched a boycott of Dilawar Syed, Biden’s nominee to be deputy administrator of the Small Business Administration, citing concerns about coronavirus pandemic emergency funds going to Planned Parenthood affiliates. Democrats cast the blockade as anti-Muslim bigotry, but they were not able to persuade any of the panel’s 10 GOP members to attend a meeting last year to advance his nomination.

Syed on Tuesday was named to a non-Senate-confirmed post at the State Department. While the White House has not withdrawn the SBA nomination, it is a tacit acknowledgment that Senate Democrats have no viable options to confirm Syed.

Other nominees have been threatened with the tactic: The Senate Commerce Committee scheduled an unusual second hearing for Federal Communications Commission nominee Gigi B. Sohn last week after the panel’s Republicans privately threatened a boycott of her confirmation, according to two congressional aides who spoke on the condition of anonymity to describe internal discussions.

Sen. Rob Portman (Ohio), the top Republican on the Homeland Security and Governmental Affairs Committee, said Wednesday that he has threatened committee boycotts of two Federal Labor Relations Authority nominees. Panel Chairman Gary Peters (D-Mich.) agreed at a Feb. 2 meeting to delay their consideration.

Meanwhile, many Republicans have used more routine tools to delay Biden nominees, withholding unanimous consent and forcing Democrats to use time-consuming procedural workarounds — much as Democrats did to many GOP nominees during Donald Trump’s presidency. On Wednesday, for instance, Sen. Tom Cotton (R-Ark.) blocked confirmation of several U.S. Attorney and U.S. Marshal nominees, which are typically confirmed by unanimous consent.

But any move to block a Supreme Court nomination would be a steep escalation. Senior Republicans on the Senate Judiciary Committee, including Sens. Charles E. Grassley (Iowa) and Lindsey O. Graham (S.C.), have sought to play down the prospects of a nasty partisan showdown over Biden’s nominee. But other Republicans are suggesting that tough tactics could be warranted if they view the high court pick as far out of the legal mainstream.

“I think it all depends on the nominee,” said Sen. Thom Tillis (R-N.C.). “If [Biden] puts forth a highly controversial nominee with a lot of background information that needs to be examined … all those things could, you know, prompt us to use all the devices we have to go at whatever speed we think’s appropriate.”

Committee boycotts are not unheard of in the Senate: Democrats used them multiple times under Trump, attempting to slow the high-profile nominations for treasury secretary, Health and Human Services secretary and Supreme Court justice. Republicans had a clear majority at the time, and those boycotts took advantage of committee rules requiring minority participation in business meetings, which can be overridden by the majority on the Senate floor.

Because the current GOP boycotts are rooted in the Senate’s standing rules, they cannot be as easily waived without Republican help.

The Fed impasse comes at a highly consequential time for the central bank and for Biden’s economic agenda. The Fed is under pressure to control inflation, which has soared to the highest level in 40 years and emerged as a top threat to the economic recovery. Powell has signaled that the Fed plans to raise interest rates in March for the first time since the pandemic, and economists hoped that the board vacancies would be filled by the time it launched such a crucial policy pivot.

Meanwhile, inflation has become a key litmus test for how Americans judge the economy, dealing a political blow to the Biden administration. The White House touts its own moves to lower prices, including targeting corporate consolidation to help create more competitive markets. But controlling inflation is ultimately the Fed’s job, and much of Biden’s influence rests in his nominees.

Republicans have long slammed the Fed for not doing enough to combat inflation. But their latest tactic around Raskin’s confirmation suggests they’d rather keep the Fed from operating at full capacity than simply vote against Biden’s picks — at least for now.

“What you’re seeing is the further politicization of the Federal Reserve ahead of a very contentious selection process,” said Joe Brusuelas, chief economist at RSM. “These votes will happen. They just want to delay, not derail. That’s essentially the end game here.”

In addition to Powell, Biden tapped Fed governor Lael Brainard to be the Fed’s vice chair, and economists Lisa Cook and Philip Jefferson to open governor seats. Raskin has been nominated to be the Fed’s top banking regulator.

Republicans opposed Raskin as soon as Biden nominated her last month, arguing her focus on climate-related financial risks would amount to a vast overreach of the Fed’s regulatory authority. But the GOP campaign against Raskin intensified this week with the boycott and a sharper focus on her work as a board member of Reserve Trust, a Colorado-based payments firm, from 2017 to 2019.

Raskin joined the Reserve Trust board after her time as a Fed governor, where she served from 2010 to 2014, and as deputy secretary to former president Barack Obama’s Treasury Department, where she served from 2014 to 2017.

In 2017, the Kansas City Fed denied the Colorado firm access to what is known as a Fed master account, which gives banks direct access to the Fed’s payment systems. But Reserve Trust was then granted access a year later. During Raskin’s confirmation hearing, Sen. Cynthia M. Lummis (R-Wyo.) asked Raskin whether she used personal contacts from her regulatory background to help Reserve Trust secure its account.

Raskin repeatedly denied any impropriety, and, last week, the Kansas City Fed issued a letter outlining its decision to grant Reserve Trust an account. But Republicans say Raskin has not fully and directly answered questions about her interactions with Fed officials on behalf of Reserve Trust. The fact pattern, they say, suggests Raskin engaged in the type of “revolving door” behavior that Democrats have…