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Posted at 1:04 PM ET, 12/30/2010

Obama's recess appointment that makes sense

By Ruth Marcus

I gave President Obama some grief last summer for bypassing the Senate and making a precipitous recess appointment for Donald Berwick, his choice to oversee the Medicare and Medicaid programs.

I have a completely different take on the president's latest such move, to issue a recess appointment for James Cole to serve as deputy attorney general, the No. 2 position at the Justice Department.

This time around, the maneuver was justified.

My assessment has nothing to do with the individuals or positions involved, everything to do with the differences in process. Berwick had been nominated a mere three months before the president chose to appoint him while the Senate was not in session. He had not yet had a committee hearing. His Senate vetting was not complete.

By contrast, Cole was nominated in May. His confirmation hearing took place in June. The next month, the Senate Judiciary Committee voted -- albeit along party lines -- to approve the nomination and send it to the Senate floor. Where it languished until the recess appointment, part of a batch issued by the president this week.

Deputy attorney general is not some trivial post. He is the chief operating officer of the Justice Department, responsible for its day-to-day management. A vacancy there matters, and the vacancy created by the Senate's thumb-twiddling on Cole was unprecedented in length in the modern Justice Department. Back during the Reagan administration, a nominee for the job had a 61-day lag. Cole waited 219 days. The recess appointment means he'll be able to serve a scant year unless he manages to win confirmation in the new Congress.

Cole's treatment exemplifies the dysfunctional nature of the current confirmation process. It's not broken -- it's shattered.

Obstruction has become the reflexive norm, not a tactic reserved for the most egregious situations. A recent report by E.J. Dionne Jr. and William Galston of the Brookings Institution offers a window into the problem: At the end of President George H.W. Bush's first year, they write, only 8 percent of total nominees were awaiting confirmation, compared to 20 percent for Obama. It is possible to get a controversial nominee confirmed with 60 votes, but only at the cost of eating up precious time on the Senate floor.

The case against Cole was flimsy -- alleged softness in the war on terror, as reflected in a 2002 op-ed piece, and alleged failure, as an outside monitor for AIG, to uncover wrongdoing at the company outside the scope of what he was supposed to be reviewing.

These complaints reflected partisan straw-grasping, not serious concerns weighty enough to overcome the strong presumption in favor of a president's choices to staff his administration. On this recess appointment, Senate Republicans have no grounds for griping.

By Ruth Marcus  | December 30, 2010; 1:04 PM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Comments

What is needed is increasing the budget to double the audits done against medicaid/medicare fraud. At least 5% would be saved of overall costs. Lowering the reimbursement for MRIs, Ct scans, etc., would lower costs. Cutting expensive specialist and increasing needed GP is also better than having to vote an emergency increase to keep them on board.

Posted by: jameschirico | December 30, 2010 1:23 PM | Report abuse

Any comments on the other recess appointments?

Posted by: werehawk | December 30, 2010 1:32 PM | Report abuse

"On this recess appointment, Senate Republicans have no grounds for griping."

Yeah, but that won't stop them.

Posted by: Amminadab | December 30, 2010 1:52 PM | Report abuse

The question is why did the Democrats who control the Senate fail to bring up the nomination of Cole. Was Harry Reid more interested in other items than this important post (is it important)? This is the Democrats problem not the Republicans who do not control the Senate.

Posted by: sales7 | December 30, 2010 4:42 PM | Report abuse

I don't see why we care if congress moves on anything.But I can see the need for stocking the justice department,with laws requiring us to eat celery and grain we may need to investigate millions of citizens.

Posted by: jmounday | December 30, 2010 7:35 PM | Report abuse

The Democrats did not want to use precious time on the Senate floor for this confirmation when there was so much of Obama's legislative agenda to deal with.

Posted by: allamer1 | December 31, 2010 12:08 AM | Report abuse

Democrats raised the partisanship and the nastiness on appointments to new heights for 8 years, and knew full well what they were doing.

Obama himself as a senator was no angel in the matter of Bush appointments, either, so he's merely getting a taste of his own medicine.

Democrats can either quit playing dirty, or quit complaining about it ... not both.
.

Posted by: gitarre | December 31, 2010 4:07 AM | Report abuse

In what kind of a world is it okay take 3 months to approve a presidential appointment? Marcus says three months is acceptable; six months is not.

Well nuts to that. The senate should schedule review of presidential appointments for, say, every Friday until the list is completed. The GOP delays are nothing but further antics from the Party of No. Anything, anything to make the president of the United States fail --- even if the whole country fails too.

Posted by: Casey1 | December 31, 2010 7:00 AM | Report abuse

As sales7 said, this is a Democratic problem ... why didn't Harry Reid bring Cole's nomination to the floor during the regular or lame-duck session?

Stop blaming the Republicans for the shortcomings of the Senate Democrats.

Posted by: Hazmat77 | December 31, 2010 8:21 AM | Report abuse

Where was Ruth Marcus' written concern for the delay in confirming nominations when W was president?

Avowed liberals, such as Ms. Marcus, were painting quite a different picture at that point.

I have to remind myself that Ms. Marcus is an opinion piece writer, but this nagging question keeps coming to my mind- why does anybody really cares about her opinion?

Posted by: Willbone87 | December 31, 2010 8:47 AM | Report abuse

Ruth Marcus accurately recounts the history of the process, then blithely concludes that the recess was appropriate. Later she complains generally about past obstructions!

Ma'am, it was the Democrat-led Senate that stalled his confirmation; as you noted a floor vote was approved.
The Reid-led Senate clearly pushed its agenda knowing that regardless of its actions Obama could recess Cole. Your take on it is remarkable for its inconsistency and irrelevant conclusion.

Posted by: slatt321 | December 31, 2010 8:58 AM | Report abuse

The reason the republicans hold up the appointments, often with secret holds by senators to cowardly to put their names on them, is to obstruct government. They keep the executive from having leadership in various agencies then claim the agencies are not efficiently functioning.

Posted by: lemondog | December 31, 2010 9:45 AM | Report abuse

Who started the short work-week? We are paying good money for our Representatives and Senators
to work at their jobs a full week like the rest
of us. Do their staffs work a full week while they are away?

Posted by: loonramdonyahoocom | December 31, 2010 1:04 PM | Report abuse

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