Frustrated over Senate Republicans blocking his controversial appointment of union lawyer Craig Becker to the National Labor Relations Board — as well as the holding up of other prospective nominees — President Obama announced he will bypass the Senate and install Becker and 14 others via recess appointments. Obama, fresh off his health-care victory, showed a bit of political leg:
The United States Senate has the responsibility to approve or disprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis. ... I simply cannot allow partisan politics to stand in the way of the basic functioning of government.
The right and the left reacted predictably.
Sen. John McCain (R-AZ) said the Becker appointment is "clear payback by the administration to organized labor." Senator Republican Leader Mitch McConnell (KY) described Obama's move as "yet another episode of choosing a partisan path despite bipartisan opposition." McConnell was referring to the fact that, in addition to all 41 Senate GOPers, two Democrats — Blanche Lincoln (AR) and Ben Nelson (NE) — voted to hold up Becker's appointment.
And here is Sen. Jim DeMint (SC) on CBS' "Face the Nation":
His recess appointments belie the fact that hundreds of his nominations have been confirmed unanimously by the Senate. But he has had mixed in with these batch of nominations some pretty radical folks. Craig Becker who was in the group that he appointed by executive fiat yesterday is someone who has worked for unions his entire career. He put him on a board that is supposed to be unbiased arbitrators between businesses and unions. Democrats opposed this nomination. There's bipartisan opposition. All we had asked for is some debate and vote on this nominee.
He decided to circumvent Congress again, which has become his style on so many issues and just appoint him while we were out of town.
On the left, Nico Pitney, writing in the Huffington Post blog, mocked the Republicans for railing against a process that they had enthusiastically backed when George W. Bush was president. After quoting McCain's outrage, Pitney added this:
Were these the words of a principled opponent of presidential recess appointments, or of a politician in a tough primary jumping at an opportunity to bash President Obama?
Well, here's how McCain reacted in 2005 when President Bush was considering a recess appointment for John Bolton, the controversial nominee to be United Nations ambassador: "I would support it. It's the president's prerogative." ...
Back in 2005 ... when asked by a Fox News host if a recess appointment of Bolton would make the atmosphere in the Senate more poisonous, McConnell replied "no" and pointed out, "typically senators who are not of the party of the president don't like recess appointments."
There is truth in McConnell's 2005 point. Go back to Bush's recess appointment of Bolton and watch how the two sides reverse roles. Back then, the president acted after Democrats had spent some five months blocking a vote on his nomination — a nomination that probably would have received a majority of the Senate, though not enough to bypass a filibuster. Sen. Barbara Boxer (D-CA) wrote a letter to the president to say that if Bush appointed Bolton, "this administration is going to sink even further in public approval, and John Bolton will be damaged goods at the U.N. at a time when we need to win friends more than ever." The letter was signed by, among others, Sens. Barack Obama (IL) and Joe Biden (DE).
Here's how the battle was described at the time by the Los Angeles Times:
The deadlock over Bolton has been a continuing source of frustration for the White House and its allies, who have managed in recent days to score important legislative victories on trade, energy and highway funding.
For four months, Democrats have blocked Bolton's confirmation with a filibuster. Although it appears that Bush's nominee would be confirmed in an up-or-down vote in the 100-member Senate, Republican leaders have twice failed to muster the 60-vote majority needed to end a filibuster.
There are differences, to be sure, between the Bolton and Becker appointments. But ultimately, it's about which party controls the presidency and which party is in the opposition. And that seems to be true throughout the history of the recess appointment.
The New York Times' Sheryl Gay Stolberg notes that Obama's action over the weekend "puts him on a par with Mr. Bush, who had made 15 recess appointments by this point in his presidency":
Mr. Bush had an especially intense tussle with Democrats over judicial appointees; during the course of his two terms in office, he made a total of 171 recess appointments, although 72 were to part-time positions, according to the Congressional Research Service. President Clinton made 139 recess appointments.
Stolberg also notes that, "in a sign that Mr. Obama did not want to go too far in inflaming partisan passions, he resisted using his executive powers to install one of his most contentious candidates, Dawn Johnsen, an Indiana University law professor, to lead the Office of Legal Counsel at the Justice Department. Ms. Johnsen has drawn the ire of Republicans for her work as a lawyer for NARAL Pro-Choice America as well as her outspoken opposition to the Bush administration's counterterrorism policies."