Apparently there can be no respite from the reek of hypocrisy. Over the weekend, the Senate Republicans got royally ticked off when President Obama decided to sidestep their obstructionism and unilaterally appoint 15 of his long-stymied nominees to crucial administration posts that have sat empty since Inauguration Day.
Emboldened by his win last week on health care reform, and apparently convinced (finally) that there's no point waiting for the other party to cooperate on much of anything, Obama exercised his constitutional right to make "recess appointments" - in this case, to take advantage of the Senate's Easter recess and rescue some of the nominees who have been stalled by the usual Republican filibuster threats and the various "holds" placed on nominees by individual Republican senators.
In a Saturday statement, Obama noted that 77 of his nominees have long been twisting in limbo, and that he had decided to fill 15 key jobs - inside Homeland Security, Commerce, Treasury, the National Labor Relations Board, and others - in order to serve "the basic functioning of government." Under the recess rule, these 15 appointees can serve only until the end of the current Senate's term, next January.
Naturally, the Republican response to Obama's move was a textbook case of hypocrisy. They behaved this weekend as if Obama, by making these recess appointments, had somehow invented a whole new form of socialist-tinged tyranny - while somehow forgetting, of course, that recess appointments are encoded as an executive option in the U.S. Constitution.
The usual huffers and puffers took center stage. Senate GOP leader Mitch McConnell assailed Obama's move as "stunning" and "yet another episode of choosing a partisan path." Senator Jim DeMint groused on CBS News yesterday that Obama had acted "by executive fiat...to circumvent Congress again, which has become his style on so many issues, and just appoint while we were out of town." Senate GOP Whip John Kyl warned that Obama's unilateral appointments "would make it very difficult to have bipartisan cooperation" going forward. And then there was John McCain, lamenting how Obama, by making his recess move, was showing "little respect for the time-honored constitutional roles and procedures of Congress."
What explains McCain, anyway? Either his long-marinating bitterness over his '08 presidential defeat has clouded his thinking, or he's simply repositioning himself ever rightward in order to fend off a primary challenge from conservative talk radio host J. D. Hayworth. Either way, he seems to have forgotten how he responded five years ago when President Bush was preparing to name John Bolton as the U.N. ambassador - via recess appointment. When asked about Bush's imminent action, McCain replied: "I would support it. It's the president's prerogative."
Indeed it is. Bush made 179 recess appointments during his two-term tenure - including 15 by this point in his second year. Ronald Reagan made 243 recess appointments, including 38 in his first year. Bill Clinton made 139 during his eight years. And one historic Republican hero, Theodore Roosevelt, made 160 in a single day, during a mass White House signing.
They all made these moves because Article II, Section 2, says that they could. As the founders wrote, "the President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate," and in 1821, U.S. attorney general William Wirt affirmed the language when he wrote, "The substantial purpose of the Constitution was to keep those offices filled."
Today's Republicans know all this; their real complaint is that Obama now seems so willing to confront them. They like him better when he extends his hand, in the spirit of bipartisanship, so that they can slap it away. And what most infuriated them, over the weekend, was Obama's recess appointment of Craig Becker to one of the many empty seats on the National Labor Relations Board.
Becker, stymied by a Republican filibuster and a "hold" slapped on his nomination by McCain, is a labor law expert who has long given legal advice to the AFL-CIO and the Service Employes International Union. How shocking it is (at least from the Republican perspective) that Obama would want to name a pro-labor figure to a board that was created during the New Deal specifically to protect the rights of workers and serve as a counterpoint to corporate clout.
But here again is where the hypocrisy theme kicks in. Senate Republicans didn't utter a peep when President Bush made seven recess appointments to the NLRB - no doubt because Bush's roster included people such as Peter Kirsanow, who, as an attorney, had specialized in representing management in labor negotiations and labor-related litigation. And I don't recall any Republicans complaining about Bush's "executive fiat" when he used the recess option to name Eugene Scalia, son of the U.S. Supreme Court justice, as the Labor Department's top legal officer. The younger Scalia was a business lawyer most famous for his opposition to government health and safety standards, which was probably sufficient reason for Republicans to hit their mute button.
The bottom line is that elections have consequences, and any president of either party is rightly entitled to choose his own qualified team. So says the Constitution, anyway. As for Obama, he need not bother waiting for the Senate Republicans to suddenly recognize that basic right. More recess appointments will surely be necessary; as I noted here six weeks ago, there's not much point in Obama extending his hand to people whose first instinct is to devour it and then demand his wrist and forearm for dessert.