The Wisdom of Obama’s Movements on Nominees

The news that Republicans had confirmed 27 of President Obama’s nominees on Thursday night before heading home to recess for the President’s Day weekend — and that the President, in turn, said in a statement that he would only be using his authority to make recess appointments in the future — has caused quite the stir.

In the two significant parts of the statement, Obama said:

[O]n Tuesday, I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments.  This is a rare but not unprecedented step that many other presidents have taken. Since that meeting, I am gratified that Republican senators have responded by releasing many of these holds and allowing 29 nominees to receive a vote in the Senate.

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess.  If they do not act, I reserve the right to use my recess appointment authority in the future.

The impact of this move has been interesting.  Many liberals and progressives were excited that nearly half of the nominees Obama called “stalled” were confirmed en masse, while others — most notably labor folks looking for a recess appointment of NLRB nominee Craig Becker — were immediately disappointed that Obama would not be issuing recess appointments before Congress returns from the Presidents’ Day recess.

One of the strongest arguments against the happenings came from Ezra Klein, who views this as a situation in which “the White House promptly shot itself in the foot.”

He wrote:

In describing recess appointments as “a rare but not unprecedented step,” Obama made it harder to actually make any, because he’s defined the procedure — which, unlike the hold, is a defined constitutional power of the president rather than a courtesy observed in the Senate — as an extraordinary last-resort. . . .

. . . As I’ve argued many times before, the relevant differences between the parties aren’t substantive, and so they cannot be solved with substantive concessions. Instead, they’re political, and that means a deal in which Obama gets something he wants but does something to damage his administration’s future effectiveness (and thus its poll numbers) is the sort of deal Republicans are likely to take.

As to the first part of Ezra’s argument, I am in complete agreement. The rhetoric of Obama’s statement balances strong language with language that is far too diplomatic. He says that some holds were intended solely to “frustrate progress,” and that those are “tactics that enrage the American people.” This is strong language. But then, as Ezra writes, he — in an attempt to be diplomatic — incorrectly defines up the recess appointment as a “rare” action that’s not “unprecedented.”  This is damaging and was unneeded — particularly since Obama is choosing to forgo recess appointments at this time.

President Obama delivers the State of the Union Address on January 27, 2010. (Photo from White House Web site.)

But, Ezra’s secondary point is a bit off, in my view. I don’t view this as a “deal.” I view this more as a necessary good-faith restraint by Obama after getting significant — though, as even Obama notes, not sufficient — movement on the nominees whose votes he was seeking. Had Obama made his threat to McConnell, received the 27 nominees into his Administration and followed up today or Monday with recess appointments, this dynamics of the situation would change considerably. Contrary to Ezra, I think it is the recess appointments following this Senate action that would allow for Obama to be more easily framed as “a bare-knuckle partisan.”

At this point, the Senate Republicans have made clear that they are concerned about the Administration — as Ezra puts it — “finding ways to avoid being filibustered.” Obama has made it clear that he views recess appointments as one such option. The set-up is made, and the Administration only needs to point to Senate inaction through the next recess to make its justification to the public for its eventual recess appointments. Or, in the alternative, the Senate Republicans will not hold up Obama’s nominees and the Senate will be able to vote on them.

As much as Ezra wants to pretend that Obama’s Administration is the same as the Bush or Clinton Administrations, the fact remains that it is not. Whether that be a function of Obama’s method of leadership, congressional leadership, the makeup of the Democratic caucus or Republican abuse of the cloture rule, this is the reality in 2010. Moreover, so long as Obama is losing a handful of Democrats — due to illness or actual opposition — on votes like Becker’s (where seven Democrats did not vote for cloture), I think he understandably wants to make sure that he has set up his use of recess appointments as unassailable (though, of course, assailed they will be).

Finally, I’d like to point out another set-up that I see in this discussion of recess appointments. A discussion of the presidential prerogative to make recess appointments involves a rather detailed discussion about the balance of powers between the executive and legislative branches. The recess appointment is a balance on the Senate’s “advice and consent” check on presidential appointments. It, most obviously, has been used by presidents as a way to get past the need to overcome a potential filibuster (or, more rarely, a negative vote on the nominee).

I see this as a great set-up, should it become necessary, for a discussion of the problem with the filibuster in the legislative realm. Unlike in the nominations realm, there is no balance to offset the filibuster. The House can’t do anything to stop it, nor can the president or the Supreme Court. It is a standalone power that has no offsetting balance. More importantly, it is based only in Senate tradition and not in the constitutional text. If an argument is ever to be made successfully against the filibuster, it seems to me that this framing is the way to do it.

So, as we await movement on Becker, Office of Legal Counsel nominee Dawn Johnsen and many other eminently qualified nominees, and as health-care and climate-change legislation face filibuster-related hurdles, I don’t see Obama’s actions on Thursday as either a “deal” with Senate Republicans or as a necessarily bad move in the course of the Administration.

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