What could Barack Obama do to improve his bargaining position the next time Republicans violate norms to gain leverage? He could make his own threats to fight back more believable — by taking action now and using his power of recess appointment in a way that’s probably legal but no one has tried before.
I argued over at the Plum Line yesterday that Barack Obama should fight back against Republican obstruction by making a recess appointment right now, even though House Republicans are preventing a proper recess through procedural gimmickry, and even though George W. Bush respected precedent and did not make any recess appointments when Senate Democrats used similar tactics in 2007-2008 (details there, and in this earlier post; see also Ari Berman’s arguments). The argument I made over there, which I think is a reasonable one, is that there’s a huge difference between action to block appointments taken by a majority of the Senate compared to action taken by the House, which has no Constitutional role in confirmations.
Regardless of any of that, and of the substantive advantages of actually having his nominees in place at the various agencies and departments, I think that at this point it would serve Obama well to show that he isn’t afraid of GOP criticism, or even criticism from Washingtonians in general, on procedural stuff. This gets back to Richard Neustadt’s idea of “professional reputation.” People who deal with the president watch him carefully, and form conclusions about him: is he tough or weak? Is it dangerous to oppose him? Rewarding to support him? Can his word be trusted? And many other similar questions.
Obama has obviously been trying, either because his electoral gurus think it will help him in 2012 or because he actually believes it to position himself as the most reasonable person in Washington. Putting aside whether it actually might make any difference on the 2012 elections (and I think Steve Kornacki has a good rundown of that), it invites all sorts of damage to his bargaining reputation. Recess appointments under the current circumstances would be a good way out. He can still claim that he’s the reasonable one, especially if he starts with relatively uncontroversial nominees — I suggested the Commerce Secretary designee, John Bryson. But he could show that he’s willing to counter creative GOP moves aggressively. And right now, it sure seems that his reputation for that sort of thing could use a bit of a boost.
[Cross-posted at A plain blog about politics]