Will President Barack Obama give his allies a special reason to pop open a magnum of champagne on New Year’s Eve? He could -- if he uses the recess appointment power to overcome Senate Republicans who have blocked confirmation votes on financial industry overseer Richard Cordray and some of Obama’s nominees to the federal bench.
Normally presidents nominate judges and executive branch officials and the Senate either confirms or rejects them. But the Constitution does allow a president to make appointments when the Senate isn’t in session. Those appointments expire at the end of the next session of Congress.
So if Obama were to give someone a recess appointment on New Year’s Eve, he or she could serve until December of 2012. If Obama wins re-election, he could nominate them and push for Senate confirmation.
On Saturday the nominations of Cordray, three other executive branch nominees, and eight judicial nominees died, since under the Senate rules the body hadn’t acted on them by the end of the session. Obama would need to re-nominate them when the second session of the 112th Congress begins next month, if he wanted to try to get them confirmed.
Or he could give them recess appointments.
It’s debatable whether Obama can wield his recess appointment power while the Senate is holding pro forma sessions every three days for the next few weeks. When George W. Bush was president, the Democratic-controlled Senate used pro forma sessions, as Senate Majority Leader Harry Reid said in 2007, “to prevent recess appointments.”
Asked Tuesday whether there was a possibility that Obama would give Cordray or nominees to the National Labor Relations Board (NLRB) recess appointments, Obama spokesman Jay Carney replied, “We're not relinquishing any rights here.”
Obama’s progressive allies cite the case of President Theodore Roosevelt in 1903 who used a brief inter-session recess to make over 160 appointments, mostly of military officers, according to the Congressional Research Service.
Using the appointment power would give holiday cheer some of Obama’s supporters who argue that it’s the only way for Obama to show strength and prove to Senate Republican Leader Mitch McConnell that he will not allow his nominees to be stymied.
“McConnell’s tactics have become so egregious,” said Ian Millhiser, a legal policy analyst at the progressive think tank, The Center for American Progress. “It defies the rule of law to say that a minority caucus in one house of Congress can effectively repeal the law that created the Consumer Financial Protection Bureau through creative use of the filibuster of a nominee.”
But he added, “The president is in a genuinely difficult position now because McConnell is willing to use such unprecedentedly aggressive tactics including taking so many other nominees hostage.” Millhiser said that if Obama makes recess appointments, McConnell could respond blocking votes on the remaining Obama judicial nominees.
In a presidential election year, the Senate typically confirms few judicial nominees anyway. “Confirmations in a presidential election year are possible, but I wouldn’t hold my breath for 2012,” said judicial nominee expert Russell Wheeler at the Brookings Institution.
So Obama might opt for some certain appointments, even if temporary, instead of taking the uncertain chance of getting Senate confirmation votes on his judicial nominees.
Obama’s allies in the labor and progressive movements have focused on the NLRB, to which he has announced two new nominees, Dick Griffin and Sharon Block. But all 47 Republican senators warned the president in a letter Monday to not give them recess appointments.
“It would, at the very least, set a dangerous precedent that would most certainly be exploited in future cases to further marginalize the Senate's role in confirming nominees and could needlessly provoke a constitutional conflict between the Senate and the White House,” the Republican senators told Obama.
The president could use the recess to appoint judges too, in the manner of George W. Bush, who used recess appointments to temporarily place on the bench two of his nominees, Charles Pickering and William Pryor, whom the Democrats had blocked with filibusters.
But Nan Aron, head of the Alliance for Justice, a progressive group which tracks judicial confirmations, said Tuesday “I haven’t heard any discussion specifically about this possibility.” She added that a recess appointment to an executive branch job “makes a lot more sense” than recess-appointing a judge, since federal judges, unlike agency heads, have life tenure.
Recess appointments, just like filibusters, have been used by presidents and senators of both parties – and of course there’s a mirror-image quality to the complaints when these tactics are used.
In 2006, for instance, it was a Democratic senator, Patty Murray of Washington, who complained that Bush’s recess appointment of Richard Stickler to head the office of Mine Safety at the Department of Labor was “a cruel slap in the face to the miners and their families who have experienced so much loss of life this year.” She said Stickler lacked the right experience and commitment to safety.
Four years later, it was a Republican, Sen. Orrin Hatch of Utah, arguing that “the American people deserve better than this type of arrogance of power” when Obama “chose to circumvent the Senate and the American people by recess appointing his controversial nominee, Donald Berwick, to head one of the most powerful agencies in the Washington,” the Center for Medicare and Medicaid Services.
Change the party labels and each statement could suffice for the purpose of expressing the senator’s anger.
On judicial nominations, by one measure Obama is lagging Bush, with 124 judicial nominees confirmed by the Senate, compared to 169 Bush judicial nominees confirmed in his first two years as president.
But by another measure Obama has bettered Bush. “To date Obama has had a larger effect on the party-of-the-appointing-president composition of the courts of appeals than did Bush, mainly because Bush replaced mostly own-party appointees, while Obama has been able to replace mostly other party (Republican) appointees,” says Wheeler. “Look at how the Fourth’s Circuit’s court of appeals has changed by that variable.” That court went from having only five judges appointed by a Democratic president in 2008 to eight today.
Obama has suffered three high-profile defeats on appeals court nominees: Caitlin Halligan and Goodwin Liu failed to get enough votes to end Senate debate on their nominations, and Robert Chatigny asked that his nomination be withdrawn after Republican senators criticized his handling of the case of a serial killer.
He has enjoyed some success too. Obama’s appeals court nominees have a higher confirmation rate, 68 percent, (or 25 out of 37 Obama nominees) than Bush’s nominees. Twenty-nine out of 49 Bush appeals court nominees, (59 percent), had been confirmed by this point in Bush’s presidency.
But Aron said, “You’ve got to look at district court judges. That’s where the problem is.” There are 63 district court vacancies and 29 district court nominations pending, according to the Administrative Office of the U.S. Courts – nearly twice the number than at the same point in Bush’s first term.