I write this column after the Senate has returned from its recess and before the president’s State of the Union message. The tension between Congress and the president is palpable, and nowhere is that more true than in the controversy over recess appointments.
Back in January 2002, amid another controversy over recess appointments between the Democratic majority in the Senate and the Bush administration, I was quoted in an Associated Press story saying, “The flaw here is not so much in the Constitutional design as it is in the politics of confirmation and nomination. Frankly I have a significant amount of sympathy with the president.”
The same is true now, but even more so because in the past 10 years, the politics of confirmation and nomination have gotten significantly worse.
Back then, Senate Democrats shirked too frequently their responsibility to bring nominations made by the president for executive positions to the floor to get up-or-down votes. The Senate is perfectly within its constitutional rights and framework to reject a presidential nominee for whatever reasons a majority might have, but to quash nominees without even a chance at a vote, in many cases in committee, is simply wrong. And it is wrong whether the decision to keep confirmation votes from occurring is made by the Senate Majority Leader, a committee chairman or by any random Senator who exercises a hold that effectively kills a nomination.
In the past three years, individual Senate holds on nominations have soared (unfortunately, we do not have hard numbers to quantify the change, but it is evident in the backlog of nominees.) At the same time, it is clear that Minority Leader Mitch McConnell (R-Ky.) and his colleagues have used holds and the threat of filibuster to block large numbers of nominees, including many ambassadors, releasing some here and there only after intense negotiation with the president. That process may be typical — but there is a twist that is new, what Tom Mann has coined “the new nullification.”
Senate Republicans made it clear that they would block via filibuster any nominee to the Consumer Financial Protection Bureau, rendering the new agency nearly impotent, because they did not like the law that created it. If Senators don’t like a law, they ought to try to change it — but keeping the president from fulfilling his constitutional duty to see that the laws are faithfully executed is not acceptable behavior.
At the same time, Senate Republicans used a similar tactic to keep the National Labor Relations Board from filling vacancies, leaving it without a required quorum to do business, all to thwart the clear legal responsibility of the NLRB.
There were (and are) enough votes in the Senate to confirm Richard Cordray as head of the CFPB and to confirm all the nominees from both parties to the NLRB.
But the House — which has zero role under the Constitution in the confirmation process — intervened to keep Congress from a formal recess. That led President Barack Obama to adopt a plan initially crafted — but never implemented — by Bush administration Justice Department and White House officials to declare the Senate in recess when it held pro forma sessions but self-evidently was in hiatus, and to choose recess appointments to fulfill his constitutional executive duties.