CROCODILE TEARS…. A few days ago, Senate Republicans started expressing their concerns about possible recess appointments. Sure, they said, President Obama easily won his election. And sure, they noted, he had sent qualified nominees to fill key government posts. And sure, they conceded, if the Senate actually voted on these nominees, they’d be confirmed.
But, these Senate Republicans said, if the president interfered with their blind, reflexive obstructionism by making recess appointments, they were going to complain a whole lot.
And complain they did.
Sen. John McCain (R-Ariz.) pronounced himself “very disappointed” with the move, charging that it showed “once again” that the Obama administration has “little respect for the time honored constitutional roles and procedures of Congress.” The president’s team had “forced their will on the American people,” McCain fumed in a written statement. […]
Senate GOP Leader Mitch McConnell also joined in the protests of Obama’s recess appointments on Saturday, calling them “stunning” and “yet another episode of choosing a partisan path despite bipartisan opposition.”
The whining is cheap as it is hypocritical. It’s not the president who’s shown “little respect for the time honored constitutional roles and procedures of Congress” — that’s actually backwards. Obama has been reluctant to use recess appointments specifically because he wants to see the Senate do its job. But it’s reactionary Republicans like McCain who prefer to ignore “time honored constitutional roles and procedures” — such as the notion of giving qualified nominees up-or-down votes.
Also note the selective outrage. McCain was only too pleased to support George W. Bush’s recess appointments, even for outrageous nominees like John Bolton. Indeed, during Bush’s presidency, McCain implored the then-president to use this tactic more often. There were no bitter press releases about “time honored constitutional roles and procedures.”
McConnell is hardly any better. On Fox News five years ago, McConnell not only defended recess appointments, he noted, “[T]ypically senators who are not of the party of the president don’t like recess appointments.”
You don’t say.
In the interest of fairness and intellectual consistency, I should note that I’m still not a big fan of recess appointments. I just don’t think Obama had much of a choice here.
Article II, Sec. 2, of the Constitution says, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Note that it says, “the recess,” not “a recess.”
In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate’s “advice and consent.” There’s a lengthy break following the final adjournment for the legislative session. This is “the recess.” The provision was not about giving presidents the authority to circumvent Congress when the White House felt like it.
In the modern understanding, though, any recess is an opportunity for a president to start filling vacancies with appointed officials.
If I had to guess, I’d say the president, who knows a little something about constitutional law, isn’t crazy about this option, which is probably why he hasn’t taken advantage of it until now
But Senate Republicans are simply out of control, and are deliberately undercutting the political process in ways that threaten to permanently undermine the institution. If they oppose the president’s nominees for various posts, they’re welcome to vote against them. But the GOP has taken obstructionism to comical depths — going so far as to filibuster nominees they end up voting for anyway.
There’s no reason for the White House to tolerate this. Indeed, Obama would be setting an unwelcome precedent if he did tolerate this.
If we’re being honest about this, do I think using the recess power for routine, non-emergencies constitutes abuse of the option? Yes, it probably is. But the far more offensive abuse is Senate Republicans not letting the chamber vote on these nominees in the first place.
With Senate Republicans unwilling to let the chamber vote on key, qualified nominees, the White House had a straightforward choice: allow important posts to remain vacant indefinitely in the face of unprecedented obstructionism, or start embracing recess appointments. The president, I believe, chose wisely, and Republicans’ crocodile tears are best left ignored.