Jon Bernstein has an interesting post up today about the thawing of the Senate confirmation process. Bernstein attributes today’s confirmation of two Federal Reserve nominees, as well as a spate of April nominations, to the president’s aggressive use of the recess appointment power in January.
If Republicans know that Obama is willing to use his constitutional authority to fill positions if they do not act, then the incentive for them to filibuster is significantly reduced. Indeed, there were reports last month that Republicans were dropping procedural roadblocks as part of a deal for Obama refraining from further recess appointments. They weren’t going to make that deal if they doubted his interest or willingness to act.
It’s an intriguing argument, but I’m not so sure that we can generalize from today’s relatively smooth sailing for the two Fed nominees. And my hunch is that today’s confirmation successes are a bit over-determined.
First, these nominations were unusual: The president paired a Democratic (Jerome Stein) and a Republican (Jay Powell) nominee. My hunch is that Republicans’ willingness to confirm a pair of Obama nominees stems more from the bipartisan deal than from the fear that Obama might otherwise make a recess appointment to the Fed. Reid’s timing—coupling the move to confirm the pair with the news of the J.P. Morgan losses—may also help to explain why 21 GOP were willing to cross the aisle to confirm Stein and 25 to confirm Powell.
Second, keep in mind the nature of these two particular vacancies. From formal models of judicial appointments, we know that not all vacancies produce opportunities for (in Keith Krehbiel’s terms) policy-changing appointments. In this case, the two Fed vacancies were to replace an academic economist (Fred Mishkin of Columbia) and a Republican lawyer/investment banker (Kevin Warsh). Obama’s nomination strategy appropriately coupled an academic economist (Stein) and a Republican lawyer/investment banker (Powell). Although we don’t know for sure how hawkish or dovish Stein and Powell will turn out to be, it does seem that Obama’s Noah’s Ark strategy produced (if you will) an eye for an eye and a tooth for a tooth. If that’s the case, the scale was weighted towards confirmation even without the threat of a recess appointment.
Third, it’s tempting to count the spate of federal trial court nominees confirmed over the past several months as evidence of a recess-threat induced thawing of the Senate. My hunch though is that the Reid-McConnell deal in the wake of Reid’s threatened 17-judge-cloture-mageddon in March played a greater role than the Obama recess appointment threat in securing Republican consent.
Fourth, my admittedly seat-of-my-pants hunch is that the White House never intended to widely deploy the recess appointment bomb. And Republicans probably understand this. Think of January’s hits as surgical strikes. Without a confirmed director, the Consumer Financial Protection Bureau could not fully exercise its new powers under Dodd-Frank. And without a quorum, the NLRB could not make any rulings. In contrast, short-lived recess appointments to lifetime (judicial) or multi-year seats are far less valuable to the White House and thus not worth the potential price paid. Given the damage that a peeved minority can impose on a president’s agenda in the Senate, there have to be awfully good reasons for the president to tick off his opponents. I’m skeptical that very many vacancies are deemed that important by the White House.
All that said, I agree that any sign of a Senate thaw is a good one. Senator Alexander’s remarks today on the floor may be too optimistic about senators’ capacity for restraint and cooperation, but such sentiments are certainly a step in the right direction.
[Cross-posted at The Monkey Cage]