The right to choose



During his surprise press conference yesterday - his first with the White House press corps since the summer of '09 - President Obama said that he was (finally) fed up with Senate Republican obstructionism. Over the past year, he has been trying to fill key vacancies, to staff the government and get it running at full capacity, but the Senate GOP has thwarted his efforts by threatening filibusters on many appointees and by putting "holds" on many more. After Obama met yesterday morning with Senate Republican leader Mitch McConnell, he told the press:

"In our meeting, I asked the (GOP) leadership to put a stop to these holds, in which nominees for critical jobs are denied a vote for months. Surely we can set aside partisanship and do what's traditionally been done with these nominations. If the Senate does not act, and I made this very clear, I will consider making several recess appointments during the upcoming (Senate) recess, because we can't afford to let politics stand in the way of a well functioning government."

Whoah! Did Obama actually say that he might use his constitutional powers to circumvent the Republican obstructionists by simply appointing some of his obstructed nominees? I offer one word in response:


It's about time. The Republicans, who are primarily motivated by a desire to wreck Obama's presidency - or, at minimum, to throw sand in his administrative machinery - have spent the past year putting the master plan into practice. The Senate GOP has routinely targeted scores of key Obama nominees, thwarting their confirmations indefinitely; the filibuster threat has worked wonders, as has the parliamentary tactic of the "hold," in which any individual senator (often anonymously) can designate a nominee for perpetual limbo for whatever reason he or she fancies. My favorite, so far, was the move by lame-duck Kentucky Republican Jim Bunning to slap a hold on Obama's nominee for the post of Deputy U.S. Trade Representative. Why? Because Bunning wanted the trade office to file a protest against Canada, because Canada has a law that bans cigarettes with candy flavors. (I know, go figure.)

The Senate Republican tactic, occasionally aided and abetted by a conservative Democrat or two, has delayed or prevented Obama from staffing (among many others) top jobs at the Justice Department, the Surgeon General post, the top science and technology job at the Department of Homeland Security, the job of Assistant Secretary of State for Western Hemisphere Affairs, two posts on the Council of Economic Advisers, the directorship of the National Drug Control Policy office, and the top job in the General Services Administration.

That GSA job is real controversial. It concerns the allocation of furniture and equipment for government offices. Obama's nominee was finally confirmed last week - after being held up for nine months by a single Republican senator, Kit Bond. His reason? He was on the prowl for new federal pork; he wanted to get a federal government facility built in Kansas City. (Wait, aren't the Republicans always talking about reigning in federal spending?)

All told, 177 thwarted Obama nominees are still in limbo. For a few days last week, Alabama Republican Sen. Richard Shelby put a hold on 70 of them. His reason? He was on the prowl for federal pork, hoping to cut a deal for a new federal facility in Alabama.

Anyway, Obama in his first year has repeatedly spurned suggestions that he sidestep the obstructionists and make "recess appointments" when the Senate is not in session. It's perfectly legal; under Article II, Section 2 of the Constitution, "the President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate," by simply appointing thwarted nominees who can then serve as long as two years. As U.S attorney general William Wirt wrote way back in 1821, "The substantial purpose of the Constitution was to keep these offices filled."

Ronald Reagan made 38 recess appointments during his first year alone. George W. Bush made 171 during his tenure. Bill Clinton made 139 during his tenure. Theodore Roosevelt went even further; he made 160 recess appointments in one mass signing.

So why has Obama so firmly resisted this option? Because he didn't want to risk alienating any Senate Republicans who might be tempted to cross the aisle for health care. Because he wanted to make nice, to move beyond the old partisanship that in recent decades has tainted the confirmation process; as he said when he first announced his presidential candidacy - three years ago today - "so long as we're willing to listen to each other, we can assume the best in people instead of the worst."

But the fact that he's now weighing recess appointments is proof, perhaps, that he has finally arrived at a self-evident truth: There's not much point in assuming the best of people who want to wreck your governance. There's not much point in extending your hand to people whose instinct is to devour it and then demand your wrist and forearm for dessert.

If the positions are reversed, a Republican president would quit all the comity talk and maximize his constitutional power to appoint. And his Republican message team would come up with something that every American would grasp in an instant - something like, "The president won the election, and he should be allowed to choose his own team." How typical it is that the Democratic message crafters have yet to come up with such a simple, sensible soundbite.