"An Actual Filibuster"

That's what Keith Hennessey says normally takes place before a recess appointment, in claiming foul on Barack Obama for his recess appointment of Don Berwick, which took place even before the appropriate Senate committee even held a hearing on Berwick.

Hennessey is a good source of information on Congressional procedure, but in his post he makes several errors, showing that his knowledge of the Senate and confirmation is a bit on the dated side.  I'll start with "an actual filibuster."  What is that?  Well, in the old days, it was easy to spot -- it involved people who looked suspiciously like Jimmy Stewart, or at least pretending that they did, reading recipes or some such filler on the floor of the Senate.  But that's not what a filibuster looks like any more!  In fact, a "filibuster" doesn't look like anything.  On confirmations, it takes the form of objecting to unanimous consent to bring the nomination to a vote...but that's exactly what a single-Senator hold looks like, and moreover unless the majority wants to make a point, they don't bother trying.  Or, we could say that a filibuster consists of voting against cloture, or forcing a cloture vote, or, as in the most common form, making it known that the minority will force a cloture vote.  Any and all of those, in the current Senate, count as an "actual filibuster." 

But, as I've discussed with regard to Elena Kagan, that's not all.  Republicans in the current Senate have made it clear that they are forcing cloture votes on every nominee -- or, at least, threatening to do so.  Hennessey says of nominees that "If you’re controversial, the question of your nomination can be filibustered."  But that's precisely where he's wrong about the current Senate, in which many nominations have been stalled for weeks, or even for months, only to eventually yield unanimous or close to unanimous confirmation votes. 

Once upon a time, filibusters were reserved for truly weighty issues.  Then, during the Bill Clinton and George W. Bush administrations, filibusters were used on any controversial measure or appointee.  It's only in the last two years, during the Obama presidency and this Senate, that a real 60 vote Senate, in which nothing at all could pass without a supermajority, was institutionalized. 

Of course, presidents have fought back, using whatever weapons they had.  Bush fought back by using recess appointments at an unusual pace...until Democrats took over the majority in Congress, and stopped having recesses.  Now, Barack Obama has decided that there's no point for him to wait around until the filibuster (slowly) takes shape.  But, as I've said with Kagan, it certainly is a filibuster: everything is filibustered in the current Senate, successfully  or not.  Hennessey talks about bypassing "the normal Senate confirmation process," but then talks about a possibility of a filibuster.  In the current Senate, filibusters are not a possibility; they are certain, on everything.  Given that, it's probably the right move to make for the president to use his power for recess appointments at a time of his choosing, to maximize his own interests (including, of course, his interest in getting the administration fully staffed).  The real question is whether Republicans are willing to strike a deal that would free up more nominees.  In fact, after Obama started making recess appointments earlier this year, Republicans appear to have relented on non-controversial executive branch nominees, and most of them have been cleared from the Senate calendar and confirmed.  Obama is certainly playing hardball here; the question is whether Republicans would be willing to cut deals to get more nominees confirmed (that is, to allow "up or down" votes) without recess appointments, or if they would prefer to whine about process. 

I'll give the last word here to Jonathan Chait, who gets it right:

The best Republican defense of filibustering everything is: the rules are the rules. If the rules say you can filibuster whenever you want, then there's no reason not to filibuster every single thing. And that's fine. Likewise, the rules also say the administration can appoint officials to the executive branch without Congressional approval during a recess.

If you're going to push the rules as far as they can go, you can hardly complain when the other party does the same thing.