CQ TODAY ONLINE NEWS
Jan. 20, 2012 – 9:36 p.m.
Recess Move Changes Stakes for Nominations
By David Harrison, CQ Staff
President Obama’s four controversial recess appointments have brought renewed attention to the nearly 200 judicial and executive branch nominees awaiting Senate confirmation.
The recess appointments have raised the stakes in a face-off between the White House and Senate Republicans over some of the president’s more high-profile nominations. As a result, uncertainty surrounding stalled nominations is unlikely to lift anytime soon and could even grow as this year’s election approaches.
“This certainly doesn’t make things easier. It can only make things harder, and they were pretty hard to begin with,” said William Galston, a senior fellow at the Brookings Institution.
A lawsuit has already been filed to challenge the legality of the recess appointments Obama made Jan. 4, and more lawsuits are expected.
So far, however, Senate GOP leaders have resisted saying how they plan to respond to the president’s move. In the meantime, they may have won some time to settle on a strategy for dealing with the president’s nominee to replace
The White House announced Jan. 17 that Jeffrey Zients, deputy director for management and chief performance officer at OMB, will become acting OMB director when Lew becomes White House chief of staff at the end of the month.
A memo by the Justice Department’s Office of Legal Counsel, dated Jan. 6 and released Jan. 12, defended the legality of Obama’s recess appointments, but that is unlikely to quiet the controversy that erupted after the president used recess appointments to install a director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board.
The White House has sent 181 nominations to the Senate that have yet to be confirmed. Of those, 74 have been through committee and await Senate floor action, including nominations for such significant positions as undersecretaries at the Treasury and Energy departments, and deputy secretaries at the departments of Commerce and Housing and Urban Development. A third of Obama’s nominations have been pending for more than six months.
In many cases, senators blocked the nominations as a tactic to gain political leverage, often on unrelated issues. Last month, for example, Minority Leader
“We are ready to move forward by consent with a package of nominations just as soon as I receive confirmation from the administration that it will respect practice and precedent on recess appointments,” McConnell said.
The tactic of winning concessions in exchange for supporting a nomination is hardly limited to Republicans.
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Recess Move Changes Stakes for Nominations
In other cases, Republicans simply object to the mission nominees are tapped to carry out. GOP opposition to the health care overhaul (PL 111-148, PL 111-152) was a large factor behind the stalled confirmation of Donald M. Berwick to become administrator of the Centers for Medicare and Medicaid Services.
And opposition to the financial services regulatory overhaul (PL 111-203) was a driving force behind Republicans’ resistance to the nomination of Richard Cordray to head the new Consumer Financial Protection Bureau. Cordray was among Obama’s four recess appointments.
Republicans also have had problems with the nominees themselves. For instance, in December, senators rejected the nomination of Mari Carmen Aponte to be U.S. ambassador to El Salvador, citing an article she wrote on homosexuality and her ties to a Cuban man suspected of being in contact with Cuban intelligence officials.
Last March, Sen.
Republican Response
Experts of the presidential nomination process are divided on the impact of Obama’s recess appointments.
David Lewis, a political science professor at Vanderbilt University, said pending nominations are likely to grind to a halt, at least for a while, in response to this month’s appointments. Republicans certainly are discussing their strategy, he said.
“It wouldn’t surprise me if there is some deal to allow some positions through, but that will only come after a threat of blanket holds and threats to shut the Senate down,” Lewis said.
Senate GOP leaders have yet to publicize their strategy, but many say the recess appointments have aggravated already tense relations between congressional Republicans and the White House. Shortly after Cordray’s appointment, McConnell released a written statement warning that the move “threatens the confirmation process and fundamentally endangers the Congress’ role in providing a check on the excesses of the executive branch.”
Galston said there is a risk for Republicans if they appear too intransigent and come off as obstructionists.
“On the one hand, Senate Republicans want to exact a measure of revenge, I’m sure. On the other hand, they have to be very careful,” he said. “Shutting the entire appointments process down, I think, would be a really dumb, counterproductive, self-destructive move. They’ll have to be selective.”
A Vacant Judiciary
Federal judicial nominations have long been controversial, and in a presidential election season senators of the party that does not control the White House commonly sit on judicial nominations until voters go to the polls.
Recess Move Changes Stakes for Nominations
Roughly a tenth of the Obama administration’s judicial nominations await confirmation. A Congressional Research Service report last year found that judicial vacancy rates during the 111th Congress were historically high.
“Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Roberts, a Republican appointee, wrote in his annual state of the judiciary message.
Victor Williams, a law professor at Catholic University, sees reason for hope. Should Obama again resort to recess appointments during a pro forma session of the Senate, it could spur the Senate to consider nominations rather than block them indefinitely.
Obama, Williams said, should start relying more on recess appointments, “and in doing that, hopefully incentivize the Senate to reform this dysfunctional, broken confirmation process,” he said. “I really respect that advise and consent responsibility they have. I just wish they would use it.”