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A deal on nominations that even a Republican could love

obamared.JPGThe administration scored a big victory last night, or at least it thinks it did. After President Obama finally threatened to make recess appointments if Senate Republicans didn't let some of its nominees through the confirmation process, the Republicans allowed the Senate to confirm 29 of them last night. As if to thank them, the White House promptly shot itself in the foot.

"On Tuesday," the president said in a statement released last night, "I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments. This is a rare but not unprecedented step that many other presidents have taken."

At this point in his presidency, George W. Bush had made 10 recess appointments. Over the course of his presidency, he would make almost 200. Bill Clinton made about 150. In describing recess appointments as "a rare but not unprecedented step," Obama made it harder to actually make any, because he's defined the procedure -- which, unlike the hold, is a defined constitutional power of the president rather than a courtesy observed in the Senate -- as an extraordinary last-resort. He also promised, later in the statement, that he wouldn't make any appointments this recess.

Working backward, why not make recess appointments this recess? The administration remains terribly understaffed. Senate Republicans have slapped a historic number of holds on Obama's nominees, and Richard Shelby's effort to hold all of Obama's pending nominees as part of a multibillion-dollar shakedown made Nelson's Medicaid deal look like petty theft. What was the danger, then, of making recess appointments? That it would lead to a fight over Republican obstruction that the administration might actually win?

Worse, why explain the recess appointment as some sort of emergency measure? At what point does the administration accept that its success is dependent on finding ways to avoid being filibustered? Reconciliation can't be considered a nuclear option and recess appointments can't be saved for special cases. George W. Bush understood this and used reconciliation and recess appointments routinely in his first year. That meant it was no story when he used the processes for his next seven years. Obama is making the very consideration of these measures a story, which means any decision to actually use them will be a big deal and will make the president look like a bare-knuckle partisan.

All that said, this is probably what bipartisanship looks like today. As I've argued many times before, the relevant differences between the parties aren't substantive, and so they cannot be solved with substantive concessions. Instead, they're political, and that means a deal in which Obama gets something he wants but does something to damage his administration's future effectiveness (and thus its poll numbers) is the sort of deal Republicans are likely to take.

Photo credit: Alexis C. Glenn-Pool/Getty Images.

By Ezra Klein  |  February 12, 2010; 11:04 AM ET
Categories:  Obama administration  
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Comments

Great post, EK. See Andrew Tobias' Harry Reid story today for why Dems always lose:

http://www.andrewtobias.com/

Posted by: AZProgressive | February 12, 2010 11:13 AM | Report abuse

Apparently, Democrats don't understand the concept of political hardball. If only the President had appointed someone pugnacious and tough-minded to be his Chief of Staff.

Posted by: adamiani | February 12, 2010 11:14 AM | Report abuse

I personally think that the President ought to be able to make all of the godawful appointments he likes. TurboTax Tim and Eric Holder have done a very satisfactory amount of damage to this administration. More please.

Posted by: bgmma50 | February 12, 2010 11:17 AM | Report abuse

Nicely put, Ezra. If there's a single word to describe the President's Achilles' heel, it's "bipartisanship." And judging from this latest incident and from Michelle Obama's interview with Larry King, he's going to push stubbornly down this path to a Jimmy Carter-esque fate. And he may take the entire Democratic brand down with him.

Posted by: scarlota | February 12, 2010 11:18 AM | Report abuse

Obama is heavily focused on process: he outlines a process that everyone should follow to come to a solution, and then accepts the outcome of the process.

He may believe that his legacy is not about pushing a liberal legislative/regulatory agenda forward but rather about putting in place more "reasonable" processes for future presidencies. I'm surprised at the degree to which he seems to be willing to sacrifice his policy agenda to the altar of his vision of process, though.

Posted by: tyromania | February 12, 2010 11:20 AM | Report abuse

@adamiani: "Apparently, Democrats don't understand the concept of political hardball"

But they do. They've played a lot of political hardball in the past. They got George H. W. Bush to walk-back his "read my lips" pledge, torpedoed Bork and threw everything they had at Clarence Thomas, they managed to get unprecedented (I think) power-sharing when the Republicans won the senate, a courtesy they didn't extend to Republicans when the situation was reversed, and on and on. They know how to play political hardball.

Apparently, they've forgotten. This is amazingly awesome. I can't imagine why he wouldn't turn around and do a recess appointment, now. Why he would promise not to do one. Why he would make it seem odd or inappropriate for him to do a recess appointment.

How many victories does he want to hand the Republicans on a silver platter? And does he expect any sort of concessions in return? I mean, real concessions? If he does, he's gonna be sorry . . .

Posted by: Kevin_Willis | February 12, 2010 11:23 AM | Report abuse

I generally find most of your analysis spot-on, but lately I've been troubled by the increasing call for President Obama to govern more like President Bush. Is this really what we want? And wouldn't that stink of hypocrisy.

Posted by: mattcrot | February 12, 2010 11:23 AM | Report abuse

Kevin, I can't say whether the power-sharing agreement in the 2001 Senate was unprecendented or not, but that was because the Senate was evenly split 50/50, and Gore could have easily served as the "tie breaking" vote between Jan 1 and Jan 20 to give the Democrats control of congress for the whole session, so they had leverage. Obviously, Democratic majorities in the Senate since 2007 have been quite a bit larger than that, so the Republicans never had an opportunity to make a similar call. Not that it matters, though, in this new "60 votes is required for everything" state of affairs in the senate.

""I've been troubled by the increasing call for President Obama to govern more like President Bush. Is this really what we want? And wouldn't that stink of hypocrisy.""

This, I think, mistakes the problem people had with Bush as being a _process_ issue, rather than a policy issue.

There are two ways of addressing problems with process: one is to escalate the level of retaliation when opponents try to stymie your moves. (eg, if the opponents try to pass lots of legislation, put a hold on everything, and filibuster everything. In response, do more things by executive order or use recess appointments, etc.). Eventually, one side will blink because they aren't willing to escalate any further, and new norms and standards of process can be negotiated. Obama seems to be going for a kind of unilateral disarmament where he agrees not to go tit-for-tat and see if that "buys" him anything in terms of political capital and credibility, along with (he believes) setting a standard for future norms of behavior.

Posted by: tyromania | February 12, 2010 11:31 AM | Report abuse

Perhaps Obama thinks recess appointments should be a last resort because he actually values the constitutional text.

Posted by: mattmdavis1 | February 12, 2010 11:41 AM | Report abuse

@tyromania: "but that was because the Senate was evenly split 50/50, and Gore could have easily served as the "tie breaking" vote between Jan 1 and Jan 20 to give the Democrats control of congress for the whole session, so they had leverage"

Which, while maybe not hardball, is certainly playing harder than they are now. They had leverage when they had a supermajority, and they still have leverage, what with the presidency and majorities in both houses. They should be able to advance their agenda further, given the circumstances. And it's not like they don't know how. They just aren't, which seems strange, to me.

Posted by: Kevin_Willis | February 12, 2010 11:43 AM | Report abuse

AAAAAAAAAAAAAAARGH!!! The lack of political adeptness of this White House is really starting to annoy the hell out of me.

Posted by: pk2031 | February 12, 2010 11:47 AM | Report abuse

The one thing I've yet to understand about this administration, or Democrats in general, is their unwillingness to stand up for themselves, even when they have a strong case and a good chance of winning.

Their mantra seems to be "better to lose a little than to risk losing a lot."

Posted by: AxelDC | February 12, 2010 11:48 AM | Report abuse

The president needs some new advisers... someone that can explain to him that it isn't bad to be viewed as having the gumption to actually get what you want, even if someone throws a minor road block in front of you.

Posted by: burndtdan | February 12, 2010 11:49 AM | Report abuse

I'd like to see this modeled by Game Theory. To me the parties are playing a repeated game. Yet, there's no collusion. Always the other party takes it one step further and then is shocked (shocked!) when the tide turns and the same treatment is used on them. Are there any forward looking people in congress?

Posted by: ideallydc | February 12, 2010 11:49 AM | Report abuse

Thanks, while everyone was congratulating themselves last night about how awesome this was, I was over at Josh Marshall's pointing out how it was a case of declaring recess appointments off-the-table for little reward, when they should be using them hand over fist.

Posted by: flounder2 | February 12, 2010 11:50 AM | Report abuse

Oy vey!

Posted by: JPRS | February 12, 2010 11:52 AM | Report abuse

Kevin, it may be that the problem with the dems in the Senate is that the leadership (Reid, Baucus, et al.) are representing more conservative constituencies and have a genuine fear for their seats. Their political survival depends more on their ability to sell themselves as cooperators and bulwarks against the liberal wing of the Democratic party rather than as pugnacious hardball negotiators trying to push things past Republican obstructionists.

The president, however, does not have the same set of constraints. I really do think that his vision is to leave as his "legacy" a new set of norms of presidential behavior in Washington when it comes to its relationship with Congress. I also think that he doesn't realize how his experience with minority Republicans in Illinois and Federalist Society conservatives on the Harvard Law Review is not representative of Republican politicians on a national basis.

My father has some damning praise he reserves for the most feckless of politicians when he describes them as "a nice man." Obama certainly seems to be aspiring to "a nice man" status.

Posted by: tyromania | February 12, 2010 11:59 AM | Report abuse

"This mistakes the problem people had with Bush as being a _process_ issue, rather than a policy issue."

The two certainly weren't mutually exclusive. I don't disagree people's (myself included) central problem with Bush was his policies, but that didn't stop people (myself included) from crying foul about the process he used to push those policies. All I want to acknowledge is that the value and legitimacy of procedural tactics, whether it be reconciliation, recess appointments, or the fillibuster, changes depending on how one values the policies being pushed. Furthermore, one of President Obama's central themes during his campaign was his desire to "change the way Washington worked." For him to then "work" the same way Bush did, is a slippery political slope.

Posted by: mattcrot | February 12, 2010 12:00 PM | Report abuse

Not having any balls makes our President's job quite difficult, I suppose.

Posted by: redscott | February 12, 2010 12:03 PM | Report abuse

My guess is that the Republicans will give Obama an opportunity in the not too distant future to have another bite at this apple. I hope he takes it.

Posted by: rich_in_nj | February 12, 2010 12:09 PM | Report abuse

I'm going to have to disagree here. I think recess appointments should be more rare. As we see them escalate in the modern era (Bush I made some 76, Clinton 139, Bush 171 ....) we have to ask ourselves at what point continual recess appointments could come to circumvent the process shared between the executive branch and Congress altogether. Obama came to change the ways things were done in Washington, not perpetuate the dysfunction.

We railed mercilessly against the majority of Bush's recess appointments, especially ones like Pickering and Bolton, and felt it was an abuse of power and a reflection of the "unitary executive" that administration was trying to establish. George Mitchell famously tried to prevent Clinton from making a recess appointment (but Bob Dole disagreed--think about that).

From what I see from the Congressional Research Service, the framers' inclusion of a presidential authority to make recess appointments was largely a function of the fact that Congress didn't meet very much in the early years--they were in session for less than half the year. And until the 1940s, intrasession recess appointments were extremely rare (that is, appointments made during breaks within a session; the clause was seen to apply to intersession recess appointments, between Congressional sessions).

Because George Bush did it is not a good enough reason for me to think Obama should exact tit for tat. I realize that, operationally, he needs to get his appointments confirmed, and failing that, it is necessary to fill the positions by recess appointment. But to argue that he is wrong to suggest this is a process that should be used with discretion and only when necessary ... is, well, wrong. It remains a question of short-term needs versus long-term solutions, and of whether we should be perpetuating dysfunction or trying to fix it. He was right to threaten, but I think he's also right to suggest it is not a good solution in the long-term.

Posted by: JJenkins2 | February 12, 2010 12:14 PM | Report abuse

Call me crazy, but it almost feels as if the president is slowing building a case for being more hard-nosed against Republican obstructionism. By suggesting he may have to resort to some "rarely used" power, he is signaling to the public each time that he is on the brink of having to take extraordinary steps as a result of juvenile political games. The end result is a cumulative one: over time each small event connects with the others to reveal how Republican obstruction has pervaded every action taken by the President. Thus, it becomes increasingly undeniable to the public that the Republicans are more interested in short-term political gains than responsible governing. At some point, Republican support erodes sharply, while the support for the President climbs, during which time there is enough leverage to take unilateral action.

We know the President is a lawyer by training and this is what Lawyers do. Before they can make serious claims to a judge (i.e., the public, the must slowly and methodically build their case over time. Obama has certainly revealed himself to be patient in the face of pressure. Perhaps we are seeing this in action, with the climax coming February 25...

Posted by: wilburonium | February 12, 2010 12:16 PM | Report abuse

I'm confused by the consensus view here that the president is "declaring recess appointments off the table" (as flounder2 asserts). The president in his statement says: "While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future." So all the president has given up is making appointments in the next week, right? Seems like a pretty good deal to me.

Posted by: napapjd | February 12, 2010 12:17 PM | Report abuse

Obama is heavily focused on process: he outlines a process that everyone should follow to come to a solution, and then accepts the outcome of the process.

Posted by: tyromania

Yup, that's Obama in a nutshell. What never ceases to surprise me is that his supporters are so surprised. If his books didn't clue them in, his resume surely should have.

"He may believe that his legacy is not about pushing a liberal legislative/regulatory agenda forward but rather about putting in place more "reasonable" processes for future presidencies. I'm surprised at the degree to which he seems to be willing to sacrifice his policy agenda to the altar of his vision of process, though."

I've thought about this a lot. I think it's either that his makeup is so heavy on cerebral and light on emotion that he just doesn't get invested in what his brain decides is right, or he pretty much thinks that if folks are too stupid to grasp that he's right, to hell with them. In this regard, I'm still puzzling over the meaning of his statement that he'd rather be a good one term President than a louse two term one. Does that mean he's going to go to the mat to fight for his agenda even if it means defeat, or does it mean he's going to continue to operate in his comfort zone 'cause he's got lots of options and doesn't really need all this grief.

Posted by: bgmma50 | February 12, 2010 12:26 PM | Report abuse

I dunno - I see this differently. The first thing I thought when I heard we had pressured Shelby to remove his holds and McConnell had backed down, I was glad for the headway but sorry to lose the potent political argument: Republicans block everything, even stuff they don't care about. It's true that we need those positions filled (and why not use recess appts. now on the controversial ones, Becker and Johnsen?), but we still have the political issue, which I hope we will keep hammering. Their (non)governing strategy is obstruction. It hurts the most in filibuster of key legislation, but it's most easily demonstrated by pointing to appt. holds. We lost a powerful symbol of that when Shelby backed down. Being able to point to still considerable number of qualified appts. that aren't getting an up-or-down vote (why doesn't WH use that powerful terminology) might suck, but politically could be helpful.

Posted by: Art27 | February 12, 2010 12:27 PM | Report abuse

napapjd, these same 20-some, fully-vetted, vanilla as they come, nominees were being obstructed for months. This should have happened last year. Now a few vanilla, fully-vetted nominees got approved and the Senate will do nothing until the next recess--or better yet, there will be a midnight deal on a couple non-controversial nominees the night before the next recess, and we declare another recess appointment off the table. Meanwhile the nominees like Dawn Johnsen or Becker will be forever in limbo.

Posted by: flounder2 | February 12, 2010 12:32 PM | Report abuse

I would certainly like to think wilburonium (12:16 PM) is right, but even if he is, I'm not sure the administration has the gumption to pull it off. I've come a long way from being confident in Obama's political skill. And Harry Reid is just hopeless; good thing he'll be outa here next January, maybe the Dems can pull the nuclear option.

Posted by: ctnickel | February 12, 2010 12:32 PM | Report abuse

napapjd,

A good deal?

No not really.

I haven't done a full run-down, but in the case of someone like Dawn Johnsen you have a nominee who has essentially been in the que for almost a year at this point. If Obama decides to wait until the next long recess, that will mean that the confirmation process will have taken over 18 months.

There is no reason for any further delay on her nomination.

I'd add that I think the use of recess appointments by presidents is stretching the Constitutional practice to an unconstitutional limit -- however, the Senate procedures for blocking nominees is also pushing the limits. The Shelby precedent in particular corrupts the process to an unprecedented degree.

Posted by: JPRS | February 12, 2010 12:33 PM | Report abuse

In the words of Walter Sobchak, "No Donny, these men are cowards."

Posted by: adlynn24 | February 12, 2010 12:34 PM | Report abuse

You're hugely overreacting, Ezra. Hardly any voters know about or care about these appointments. Obama has complete freedom to turn to recess appointments again whenever he wants to without suffering any political price.

Posted by: redwards95 | February 12, 2010 12:35 PM | Report abuse

@tyro: "I also think that he doesn't realize how his experience with minority Republicans in Illinois and Federalist Society conservatives on the Harvard Law Review is not representative of Republican politicians on a national basis."

This is exactly what conservative pundits said about Bush's New Tone and "compassionate conservatism" rhetoric, and a number of his legislative decisions, and his decision not to "clean house" throughout presidentially appointed positions in government, and so on.

Even people inside suggested that Bush thought the Democrats in the house and senate would be like the Democrats in the Texas legislature, and that he could make deals and hammer out compromises and win him over with his aw-shucks charm . . . a strategy that rarely worked in DC (thus, leading to reconciliation for his tax cuts, abject failure for Social Security reform, etc).

It's interesting, the similarities between our last two presidents, when you take the policy out of it. The main different between Bush and Obama, outside of ideology, seems to be elocution. And with his recent pronunciation of corpsman as corpse-man, he might be trying to . . . nah, there's no way Obama is ever going to be able to compete with Bush's malapropisms. Ain't gonna happenitize.

Posted by: Kevin_Willis | February 12, 2010 12:37 PM | Report abuse

This post by Ezra is an example how the mass media is always trying to sow discontent.

Even when good news happens, the media tries to find something negative.

Posted by: Lomillialor | February 12, 2010 12:54 PM | Report abuse

If your goal is to stop your opponent from engaging in some sort of behavior it's difficult for me to understand how you get there by engaging in that behavior yourself.

I understand that Ezra isn't necessarily arguing that this is the goal, but I think Obama is.

Posted by: stand | February 12, 2010 1:32 PM | Report abuse

Having the appointees not yet confirmed is a political advantage to the administration at a time when they need something to attack the minority party about.

Since the minority party has not very little power in Washington, why use recess appointments to essentially fix what is one of the few political weapons, Republican obstruction, the administration has going into the 2010 elections?

Posted by: lancediverson | February 12, 2010 1:36 PM | Report abuse

When politicians play chess, reporters' eyes glaze over and they start howling and ranting for blood. But Mr. Klein's mistake here may be simple tone deafness.

Obama, as always, is speaking for the record and in the context of history, as well as to the public (as opposed to DC insiders). A few things his statement very clearly and simply iterates are: the seriousness of the obstructionism, the seriousness of his options in response, his readiness to use them, the options left to Republicans to avoid his response, the weakness and recklessness of GW Bush.

In other words, he's mapped out the context of the conflict on his terms, what's wrong and what's right, and explained why he is doing what he must.

That's just how adults talk.

Posted by: robert_e | February 12, 2010 1:38 PM | Report abuse

I generally find most of your analysis spot-on, but lately I've been troubled by the increasing call for President Obama to govern more like President Bush. Is this really what we want? And wouldn't that stink of hypocrisy.

Top-drawer concern trollery, sir! Kudos!

Posted by: antontuffnell | February 12, 2010 1:49 PM | Report abuse

"This, I think, mistakes the problem people had with Bush as being a _process_ issue, rather than a policy issue."

Speak for yourself. Many people would argue that the violence Bush/Cheney wreaked on the procedural foundations and structure of our government did more profound and lasting damage than any of his policies, starting with Bush v Gore and continuing relentlessly. Yes, the assault began long before Bush, and continues, but the pace and breadth of it under Bush was staggering.

Policies at least can be changed, as long as the means survive to change them.

As much as he has on his plate, for better or worse, Obama's most important job is to make a beginning on repairing that damage.

A constitutional democracy essentially broadly limits policy, but more importantly defines the rules by which policies are made and implemented. It's all about the means, and how ends do not justify means. Thus the cliche that it's the worst way to get anything done, but the best way we've come up with.

Posted by: robert_e | February 12, 2010 1:52 PM | Report abuse

"I'm going to have to disagree here. I think recess appointments should be more rare. As we see them escalate in the modern era (Bush I made some 76, Clinton 139, Bush 171 ....) we have to ask ourselves at what point continual recess appointments could come to circumvent the process shared between the executive branch and Congress altogether. Obama came to change the ways things were done in Washington, not perpetuate the dysfunction."

I agree. I think it is also important to remember that recess appointments are not forever -- any recess appointee still must be confirmed by the Senate by the end of the next session. If that fails to happen, the position is vacant all over again. So a recess appointment of a stalled nominee just kicks the can a little further down the road.

There is good reason to use the power only as a last resort, and to make an effort to find solutions that make the tactic less common.

Posted by: Patrick_M | February 12, 2010 2:12 PM | Report abuse

As far as setting a precedent but avoiding abuse of the capability, it seems to me that an obvious solution would be to only use recess appointments on nominees who have no received an up/down vote within some specified timeframe. Not sure what's a reasonable one, maybe 3 months?

That leaves the Senate full ability to exercise their Constitutional advise/consent powers. But if they abdicate that responsibility and hobble an administration by not letting appointees get through, then they should lose their ability to prevent a nomination.

If there are real objections to a condidate, they can be aired and the nomination blocked or overturned. If there aren't, then the nominee should be allowed to take office.

Posted by: dt4211 | February 12, 2010 2:13 PM | Report abuse

"Thank you sir, may I have another?" will be the phrase associated with this wimpy administration after they get voted out in 2012. And I'm a Democrat who voted for them!

Obama is such a weakling that he thinks this latest pointless, uneccessary, appeasing deal with the GOP is some sort of victory.

He and his administration are pathetic. I've given up on them and am now looking forward to a Democratic with a spine to emerge and challange this failure in 1012.

Posted by: toc59 | February 12, 2010 3:05 PM | Report abuse

Did President Bush ever threaten to do recess appointments, or did he just go ahead and make them?

Posted by: rmwarnick | February 12, 2010 3:15 PM | Report abuse

When O was a Senator, he was against recess appts. and apparently still is. They also expire within 18 months which would make them less attractive to me. He may be messing with Trumka also who is insisting he appoint Becker this recess, right now!!! No president really likes to be told what to do if you catch my drift. Trumka should have asked him quietly, but he has very little sense so told anyone who would listen.

Posted by: carolerae48 | February 13, 2010 10:47 AM | Report abuse

If you say how "last resort" something is, and how only if there is great resistance will you use the last resort, then you have defined its subsequent use, defacto, as a response to extreme, persistent resistance on the part of the opposition.

Whether it is, or not. Clever.

Posted by: docbets | February 14, 2010 1:04 AM | Report abuse

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