First step towards recess appointments: having nominees

Barack Obama finally got around to naming a couple of nominees to the two vacant spots on the National Labor Relations Board, announcing his intention to forward Sharon Block and Richard Griffin to the Senate.

As White House nomination delays go, this isn’t all that bad (although that’s faint praise). One seat has been open since August; the other has been filled by Craig Becker, who was recess appointed last year after his nomination was blocked by filibuster in the Senate. The big picture here is that the NLRB is supposed to have five members, three Democrats (with a Democrat in the White House) and two Republicans. There’s currently an open Republican seat, with Republicans in the Senate blocking their own nominee. Why? Because it takes three for the NLRB to act, and so if Becker steps down without replacement, the NLRB will be crippled. Just as Republicans are crippling the new Consumer Financial Protection Bureau by blocking by filibuster any potential head of that agency — it’s what James Fallows and Tom Mann among others have called a form of nullification (see Steve’s good recent item on this here).

The question is what Obama can do about it, and the answer is simple: recess appointments. It’s true that Republicans have been attempting to block them by trying to prevent a “recess” that would count for purposes of those selections, but there’s every reason to believe that Obama actually has at least three get-tough options. Each of them, to be sure, would anger Republicans, but it’s a bit difficult to see right now exactly what he has to lose. They’re not bargaining over suitable names; they’re just determined to keep these seats empty until after the election. Or, actually, however long he’s in office, as Senator Linday Graham has threatened.

The first step towards recess appointments, however, is to have people to appoint. Obama has finally done that for the NLRB and CFPB; he still is two short for the even more important vacancies on the Fed. All of which is certainly not going to make recess appointment threats very intimidating, which in turn has certainly contributed to Republican willingness to filibuster. The only way to break out of this is for Obama to start nominating people for each opening as promptly as possible, and then to follow that up with some recess appointments. Preferably before the next session of Congress opens in January. Otherwise, as long as Republicans can block the president without him fighting back with all available tools, you can expect very few confirmations in 2012, and a government that just isn’t functioning nearly as well as it should.

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.