This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Washington • Sen. Mike Lee voted against a judicial nominee from California on Thursday, keeping up his lonely protest against President Barack Obama's recess appointments.
In a speech on the Senate floor, Lee, R-Utah, said he was not opposing Cathy Ann Bencivengo's district court nomination because of any concern for her qualifications.
"Instead, I do so in defense of the U.S. Constitution," he said. "I find myself duty bound to oppose this nomination."
The Senate confirmed Bencivengo on a vote of 90 to 6. And she received the support of every member of the Judiciary Committee but Lee.
The five Republicans who joined Lee in his protest vote were his Tea Party Caucus colleagues, Sens. Jim DeMint and Rand Paul, along with Idaho Republican Sens. Mike Crapo and Jim Risch and Sen. Richard Shelby, R-Ala.
The 37 other Senate Republicans, including Sen. Orrin Hatch, R-Utah, voted with the Democrats.
Lee had supported Bencivengo's nomination when it was before the Judiciary Committee, but that was before President Barack Obama made four controversial appointments in January, using his power to bypass the Senate when it was in recess.
Obama made the appointments, including that of Richard Cordray, who now leads the Consumer Financial Protection Bureau, when the Senate was not on an official break. Instead the Senate was holding short "pro forma" sessions every three days for the purpose of preventing the president from making recess appointments.
The president's legal advisers said since the Senate had no intention of conducting any formal business, then Obama could deem them out of session.
Republicans have been outraged by the move, calling the appointments "unconstitutional" and urging legal action by businesses affected by policies put in place by these four nominees.
But few have been willing to back Lee's plan to systematically oppose the president's nomination in committee and on the Senate floor. Republicans have questioned Lee's political strategy, saying it allows Obama to paint them as obstructionists. And Democrats have done just that, arguing Obama had no choice because Republicans were blocking nominees for political reasons having nothing to do with candidates' qualifications.
Lee says his stand is not partisan and that he would do the same thing if a Republican president "makes a similarly unconstitutional claim of power."
"I'm saddened that some of my colleagues in the Senate are not more jealous of this body's rightful constitutional, institutional prerogatives," Lee said.
Twitter: @mattcanham