The predictable recess-appointment complaints

THE PREDICTABLE RECESS-APPOINTMENT COMPLAINTS…. With the White House announcing six new recess appointments late yesterday, it was only a matter of time before Republicans began complaining. What I was curious to see, however, is what they came up with.

The Washington Post‘s Jennifer Rubin took a crack at it this morning. (via Memeorandum)

On Wednesday, Obama shed any pretense of bipartisanship in making six recess appointments. As were his previous recess appointments, this batch included two individuals whose records are so controversial that they could not obtain confirmation even with 59 Democratic senators.

Hmm. Let’s unpack this a bit.

President Obama nominated six qualified officials to fill a variety of executive branch vacancies. These nominations were considered in the respective Senate committees, and approved by committee members. If brought to the floor, each of the six would have been confirmed, most with more than 60 votes. (When Rubin claims they were too “controversial” to “obtain confirmation,” this has no relation to reality. She’s simply wrong.)

Knowing this, conservative Republicans, who’ve engaged in obstructionist tactics unseen in American history, placed anonymous holds on the nominees. They could have simply voted against the nominees and urged their colleagues to follow suit, but that wasn’t good enough — Republicans had to shut down the advise-and-consent process altogether.

This, in turn, left the president with a choice: (a) leave the positions vacant until a Senate minority agreed to let the chamber vote up or down; or (b) fill the vacancies with qualified nominees who enjoyed the support of a Senate majority. He wisely chose the latter.

I am intrigued, though, by the notion of “partisanship” as a criticism from a partisan. Let me see if I have this straight — when Republicans engage in obstructionism, breaking down the confirmation process, that’s fine. When the president exercises the power available to him to circumvent this obstructionism, that’s “shedding any pretense of bipartisanship”?

It’s almost as if Obama is allowed to be affected by institutional abuses, but he’s not allowed to respond. There’s nothing wrong with political pugilism, just so long as Obama realizes he’s not supposed to punch back.

That’s quite a standard.

Rubin’s piece goes on to make arguments against some of the six officials to receive recess appointments — again, opponents could have made these arguments on the floor and tried to defeat the nominations as part of the traditional confirmation process — before wrapping up with an especially interesting point.

What, if anything, can be done by the imperious recess appointments of such controversial nominees? Todd Gaziano of the Heritage Foundation emails me, “The real threat (which Robert C. Byrd famously did once) is for the entire GOP caucus” to refuse to consent to any further nominees unless Obama agrees to refrain from issuing more recess appointments. Gaziano says that Republicans “could refuse to confirm another judge, diplomat, etc. until they extract their promise.”

Fascinating. Note Rubin’s use of the word “imperious” to describe a legal process used by George W. Bush more than 170 times.

Let’s appreciate exactly what’s being proposed here.

Every president since George Washington has used recess appointments; it’s a power explicitly given to the president in the Constitution. Rubin and Gaziano, however, envision yet another hostage scenario — the White House would have to commit to the Republican Senate minority that the president won’t exercise his own authority or the GOP will simply refuse allow any nominees to receive any votes to any office for any reason.

The president might not be inclined to pay such a ransom. Of course, if he resists, I’m sure conservative bloggers will be there to insist the White House has “shed any pretense of bipartisanship.”