The Justice Department opinion supporting Barack Obama’s recent recess appointments is out. I’ll comment on the substance of it a bit later (I think it’s fine), but first, a word on procedure. On the good side, it’s very good that the opinion was publicly released. However, overall the administration, in my view, thoroughly botched the politics of this.

As several have already noted, the opinion is dated January 6, which is two days after the appointments were made, although the opinion states that it is only formalizing the informal guidance it gave to the White House prior to the appointments. Fine; as a non-lawyer, I have no particular expertise on the legal implications of all that. Politically, however, it seems quite stupid. It makes the whole process look shady and the opinion jury-rigged. And why? It’s not as if the issues were developing quickly. Nor did anything unexpected happen in December and early January. Nor, for that matter, was there any particular rush that I’m aware of to get the appointments done in the 4th and not the 6th. I do understand releasing the opinion slightly after the initial controversy had died down if we take as a given that the opinion and the appointments were in fact close to simultaneous; it allowed the administration to focus it’s message on the substance of the appointments, not the procedure. But there’s really no excuse for the supporting opinion to be fully finished after the appointments were made.

However, it seems to me that the real mistake here isn’t in having the Office of Legal Counsel opinion finished two days after the appointments; it was failing to have the opinion finished, published, and publicized six months ago, or more. The issue hasn’t changed since the Republican House began their strategy of blocking recess appointments early last year, and the administration should have immediately struck back rhetorically and then, if the House persisted, by asking OLC for very public guidance. Doing that would have then allowed Obama to at best bargain with the Senate for a deal that would have moved things forward much earlier in the year, and at worst helped to highlight the unprecedented obstruction behind all of this and the (presumably) perfectly available options held by the White House. And that’s not all: Obama should have been hard on the case of the 111th Senate in 2009-2010 about how slowly they were moving; should have threatened to begin using recess appointments early and often; and then should have gone ahead an made them if threats didn’t do the trick. At least getting up to the pace previous recent presidents had maintained, unless Republicans dropped their filibusters.

Not to mention that Obama should have been — should still be — much, much more prompt about naming people for these positions in the first place.

What would the downside have been? Perhaps Republicans might have figured out some alternative strategy for blocking recess picks, but I’m not sure what is available. Republicans, of course, could have retaliated…but it’s not easy to imagine what steps would be in the GOP’s interest after presidential action that wasn’t in their interest before it.

Barack Obama has handled all of this poorly from day 1. The recess appointments and the publication of the OLC opinion are a good, but tiny, step in the right direction, but just one step. By not placing a priority on filling executive branch positions, he’s not only hurting the smooth functioning of the government (a fault he shares with Hill Republicans), but he’s also forfeiting some of the legitimate consequences of winning the 2008 election, something that is unfair both to himself and those who worked for him.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

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