Friday, February 10, 2012

Recess Retaliation Update

Suzy Khimm reports that the Senate confirmed a district judge today, over the objections of six diehard Republicans, led by Mike Lee of Utah, who had threatened to block every nomination to retaliate for Barack Obama's recess appointments. That sort of retaliation, apparently, is not going to happen.

To which I'll say: called it!

OK, it's not my style to pat myself on the back too often, but it's worth doing here because if I could see it, then Obama's Congressional liaison people should be been able to see it. And that means they should have had him threatening to use and then using the recess appointment power right from the beginning. He should have made it clear that he considered the 60 vote Senate on executive branch nominations absolutely unacceptable, and I suspect he could have made it stick. Not on bills, and not on judicial nominations (where recess appointments are not very valuable compared to the lifetime tenure for regular confirmations), but certainly on exec branch appointments.

There are limits to how often Obama or any president would want to use recess appointments, even in the executive branch. And, to tell the truth, a president who tried to bypass a reasonable Senate would correctly be taken to task by virtually everyone in Washington (at which point the Senate would probably retaliate by really staying in session). But other than that kind of abuse, regular and aggressive use of that Constitutional power increases, not decreases, a president's leverage in the Senate. Obama has been wrong on this one from 2009 on, and if he does win a second term it's one area where dramatic improvement is possible.


  1. I'm not advancing this as a claim, just wondering about it as a possible and maybe partial explanation: what about the possibility that, even if there was some degree of mis-calculating Congressional reaction, the WH's reluctance to be aggressive on recess appointments before and willingness to push them now has little or nothing to do with the appointments? Rather, it may have been a decision to avoid provoking the Republicans on any other front while the WH still needed a modicum of cooperation on a few big issues, namely, the debt ceiling increase. But now that legislation that _has_ to happen is mostly finished through November, the costs of recess appointments are no longer high. Thoughts?

  2. I have the same question Dana does. With all the retrospectives coming out now - Lizza, Fallows, Sullivan - one theme of course is whether Obama was naive in pursuing bipartisanship or reaching out to Repubs. I've thought all along that it was instrumental, a means of getting to sixty votes in the Senate. Leaving aside appointments for now, Obama's strategy of avoiding fights, even fights that might make his base stand up and cheer*, helped him, Pelosi and Reid enact an historic amount of historic legislation. FDR, even without any meaningful opposition from Repubs, had to get votes from conservative and liberal Dems so he was criticized for avoiding fights too, as noted in an article in TNR from 1933: "The head of a coalition government, accordingly, can exercise his freedom of action only within limits; the moment he irrevocably alienates his support on either the Right or Left, he is through. In the case of Mr. Roosevelt, you find that while he has acted with amazing boldness and imagination on a multitude of questions, he has shown great reluctance in facing up to a fight on any single clear-cut issue."

    In Obama's first two years, avoiding fights over nominations might have helped him to pass legislation, which is good, but two years is a long time to go without filling administration and judicial vacancies. And now we're starting year four in a hole so large, particularly with respect to the judiciary (I'm afraid to Google to find out just how bad it is), that it can't be filled even halfway. It looks like this might be an area where Obama is going to be judged very harshly unless he gets a second term (assuming that in a second term he fills all vacancies).

    *I think in reality high-profile fights might have made the base happy for a short time, but unless he won them too he'd lose more points for fighting and losing than for not fighting at all.




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