Editore"s Note
Tilting at Windmills

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March 28, 2010

CROCODILE TEARS.... A few days ago, Senate Republicans started expressing their concerns about possible recess appointments. Sure, they said, President Obama easily won his election. And sure, they noted, he had sent qualified nominees to fill key government posts. And sure, they conceded, if the Senate actually voted on these nominees, they'd be confirmed.

But, these Senate Republicans said, if the president interfered with their blind, reflexive obstructionism by making recess appointments, they were going to complain a whole lot.

And complain they did.

Sen. John McCain (R-Ariz.) pronounced himself "very disappointed" with the move, charging that it showed "once again" that the Obama administration has "little respect for the time honored constitutional roles and procedures of Congress." The president's team had "forced their will on the American people," McCain fumed in a written statement. [...]

Senate GOP Leader Mitch McConnell also joined in the protests of Obama's recess appointments on Saturday, calling them "stunning" and "yet another episode of choosing a partisan path despite bipartisan opposition."

The whining is cheap as it is hypocritical. It's not the president who's shown "little respect for the time honored constitutional roles and procedures of Congress" -- that's actually backwards. Obama has been reluctant to use recess appointments specifically because he wants to see the Senate do its job. But it's reactionary Republicans like McCain who prefer to ignore "time honored constitutional roles and procedures" -- such as the notion of giving qualified nominees up-or-down votes.

Also note the selective outrage. McCain was only too pleased to support George W. Bush's recess appointments, even for outrageous nominees like John Bolton. Indeed, during Bush's presidency, McCain implored the then-president to use this tactic more often. There were no bitter press releases about "time honored constitutional roles and procedures."

McConnell is hardly any better. On Fox News five years ago, McConnell not only defended recess appointments, he noted, "[T]ypically senators who are not of the party of the president don't like recess appointments."

You don't say.

In the interest of fairness and intellectual consistency, I should note that I'm still not a big fan of recess appointments. I just don't think Obama had much of a choice here.

Article II, Sec. 2, of the Constitution says, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Note that it says, "the recess," not "a recess."

In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate's "advice and consent." There's a lengthy break following the final adjournment for the legislative session. This is "the recess." The provision was not about giving presidents the authority to circumvent Congress when the White House felt like it.

In the modern understanding, though, any recess is an opportunity for a president to start filling vacancies with appointed officials.

If I had to guess, I'd say the president, who knows a little something about constitutional law, isn't crazy about this option, which is probably why he hasn't taken advantage of it until now

But Senate Republicans are simply out of control, and are deliberately undercutting the political process in ways that threaten to permanently undermine the institution. If they oppose the president's nominees for various posts, they're welcome to vote against them. But the GOP has taken obstructionism to comical depths -- going so far as to filibuster nominees they end up voting for anyway.

There's no reason for the White House to tolerate this. Indeed, Obama would be setting an unwelcome precedent if he did tolerate this.

If we're being honest about this, do I think using the recess power for routine, non-emergencies constitutes abuse of the option? Yes, it probably is. But the far more offensive abuse is Senate Republicans not letting the chamber vote on these nominees in the first place.

With Senate Republicans unwilling to let the chamber vote on key, qualified nominees, the White House had a straightforward choice: allow important posts to remain vacant indefinitely in the face of unprecedented obstructionism, or start embracing recess appointments. The president, I believe, chose wisely, and Republicans' crocodile tears are best left ignored.

Steve Benen 8:40 AM Permalink | Trackbacks | Comments (45)

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Yeah, but he wimped out on Dawn Johnson, so it's not all good.

Posted by: Lee Gibson on March 28, 2010 at 8:46 AM | PERMALINK

Mr Benen , who expresses the situation very well , leaves out one little tiny matter that disturbs the smooth surface of his insight . This of course is the blatant imposition upon all decent folks to rise up against a Kenyan installed as President . Now whether or not dear Mr President Barack HUSSEIN Obama II is a Kenyan, or a yet a Moslem is neither here nor there for decent people everywhere , IN KENYA .
Thank you

Posted by: FRP on March 28, 2010 at 8:53 AM | PERMALINK

Want to know exactly what's wrong with this country? Look no further than that crusty, whiny, seething reptile John McCain who, at the beginning of the week announced that Republicans are no longer willing to "work with the president." and is now "very disappointed" that the president won't work with Republicans. He's trying so hard to look like a neo-con because he's being challenged by an oafish tea bagging twat. If only he'd shut his wretched piehole and do some fucking work he wouldn't be in this fix. None of us would. What a shithook.

Sorry. I'm just sick, sick, sick of that guy.

Posted by: chrenson on March 28, 2010 at 8:56 AM | PERMALINK

Lee, you beat me to it. What's up with Dawn Johnsen's appointment?? Why is Obama letting that languish??

Posted by: msmolly on March 28, 2010 at 8:56 AM | PERMALINK

If Republican continually try to hoodwink the American people into believing their ever-changing rational of obstruction to a duly elected president and congressional majority, when will they offer us any sensible policies?

We should be demanding from the Republicans a show us something real or shut-up choice, and this demand needs to be lead by our nation's investigative journalists - wherever they must be, all 3 or 4 of them! -Kevo

Posted by: kevo on March 28, 2010 at 9:00 AM | PERMALINK

Bush slipped in close to 200 recess appointees during his tenure.

I do remember the anguish over (Bomb's Away) Bolton, but it was understood at the time that Bush had the authority to do so.

Now, in 2010, McCain seems to believe that Obama is violating the US Constitution.

McCain would complain about the cheap toilet paper
he has to wipe his ass with in the Capitol.

Moving on....
Last time I checked, our current POTUS is a Constitutional expert, and I doubt he would make recess appointments lightly.

Posted by: Tom Nicholson on March 28, 2010 at 9:06 AM | PERMALINK

frp,the issue of the president's citizenship has been thoruoghly resolved,unless of course you're a total douche.

Posted by: yukonjack on March 28, 2010 at 9:07 AM | PERMALINK


Where do I go today to watch President McCain?

Posted by: Ron Byers on March 28, 2010 at 9:07 AM | PERMALINK

The Party of No's obstructionism is a Rovian tactic to test a young President's calm demeanor and mettle and show him as weak and ineffective. Republicans view the strategy as win-win-win. If they can block key legislation and appointments, they win the fight against Obama's "liberal agenda." If they can force him to use reconcilliation and recess appointments, they can criticize his leadership as "radical" and "unAmerican." If they defy bipartisanship and refuse to cooperate to get anything done for the American people, they can accuse Obama of not being able to "change the way Washington works." If they can stoke devisiveness and draw a bold line between north and south, small town and city, white Christian conservatives and diverse, more secular city folks, then they can claim that Obama failed to bring "red and blue states" together. If they can gin up another wave of fear, anger, and hate, then they can incite violence and claim that Obama cannot keep us safe. They are using Sarah Palin, a woman with no political seat to lose, to fire up the wingnuts. She's only interested in the attention and the money. And when they are done with her, Republicans will claim that she "lacks the intellectual depth" and isn't a suitable Republican candidate, something that is already apparent with their choice of token RNC chairman Steele.

Posted by: Carol A on March 28, 2010 at 9:08 AM | PERMALINK

And the John Bolton example needs to be put up in kleig lights every chance we get because it was particularly egregious in that Bolton's nomination as UN ambassador had actually been REJECTED by the Senate. It wasn't as if the nominee was never given an up or down vote because of Senate foot-dragging like so many recess appointments. Bolton had actually been given a Senate thumbs-down when George Bush stuck his finger in the Senate's eye and sent him off to the UN anyway.

Posted by: Ted Frier on March 28, 2010 at 9:12 AM | PERMALINK

yukonjack, FRP is no douche. He's joking.

Posted by: chrenson on March 28, 2010 at 9:19 AM | PERMALINK

I'm still not a big fan of recess appointments.

Not a big fan of the Constitution, then?

Seriously, I don't understand how anybody can complain about processes that are explicitly mentioned in the document. As Marshall said: "It cannot he presumed that any clause in the Constitution is intended to be without effect."

Posted by: NTodd on March 28, 2010 at 9:23 AM | PERMALINK

This of course is the blatant imposition upon all decent folks to rise up against a Kenyan installed as President .

Sorry, but this shit never fails to crack me right the fuck up.

Posted by: NTodd on March 28, 2010 at 9:24 AM | PERMALINK

yukonjack, FRP is no douche. He's joking.

Either way, it made me laugh. I appreciate it.

Posted by: NTodd on March 28, 2010 at 9:26 AM | PERMALINK

I think the Republicans confused Obama's genuine desire to reach out and include them in his decision process with spinelessness. They were counting on him backing down in the face of intimidation and bullying, taking their marching orders from Fox News while the rest of the cowardly MSM wrung their hands and wallowed in false equivalencies. Looks like they were wrong. Hopefully Obama will now proceed with his agenda unfettered by any notions that the Republicans are interested in anything other than seeing him fail.

Posted by: DelCapslock on March 28, 2010 at 9:34 AM | PERMALINK

Re FRP's "Kenyan" rant upthread: It's become impossible to tell the parody trolls from the real ones. That's how demented the right has become. FRP could tweak that post (for instance, re-stating the key phrases in ALL CAPS) and take it to any of the conservative sites, where it would be accepted as normal discourse. A tad understated, perhaps, but perfectly normal.

Posted by: Charles on March 28, 2010 at 9:35 AM | PERMALINK

Bottom line: They are racist old fucks who cain't abide no darkie what don't know his place.

They are useless and their time is done. They can't shuffle off this mortal coil fast enough for either this society or the health of this planet.

Posted by: :/ on March 28, 2010 at 9:45 AM | PERMALINK

Pissing these people off is not a bug, its a feature.

Posted by: SW on March 28, 2010 at 9:49 AM | PERMALINK

I'm in complete agreement with Steve, but I'll take it one step farther in light of recent history: Repubs have a choice. They can come to work and shape policy more to their liking, or they can whine, obstruct, incite teabaggers, and forfeit their input. They are angry with the results of option B, but they chose it freely. Responsible adults take responsibility for their own actions. Republicans, apparently cannot.

Posted by: JoeW on March 28, 2010 at 9:53 AM | PERMALINK

This is OUTRAGEOUS!!! It's worse than anything Hitler or Stalin ever did! We're all dead now, that's for sure!

Posted by: Conservatroll on March 28, 2010 at 10:07 AM | PERMALINK

I actually think the president is enjoying this. It's like playing with a cat and a laser pointer; the fun never ends.

(Hi, NTodd!)

Posted by: Mustang Bobby on March 28, 2010 at 10:08 AM | PERMALINK

Obama to GOP: I won, you lost, suck on it. About bloody damn time, too.

Posted by: fradiavolo on March 28, 2010 at 10:15 AM | PERMALINK

Just realized I said of FRP, "He's joking."

I have no reason to assume that FRP is a dude or a chick. I regret jumping to that conclusion. I hope he doesn't kill me.

Posted by: chrenson on March 28, 2010 at 10:18 AM | PERMALINK

Palin is no doubt a disposable pawn in the Rethug grand strategy of destroying Obama and the Democrats. And it is the nature of the opposition to paint everything the governing party does as negatively as possible. Certainly the Rethugs are good at that, much better than the Democrats, unfortunately. There is only so partisan politics can bet before violence breaks out. When independents and moderates see the Rethugs calling for armed rebellion the fate of the GOP will be sealed.

If Obama continues to show some spine he can only win. He may be at his best when he's angry, and he ought to be livid by now. As a graduate of the Chicago style of hardball he should start using those tactics because his illusory and delusional search for bipartisanship will never reverse the obstructionism of the Party of No. These recess appointments are a good start.

Posted by: rrk1 on March 28, 2010 at 10:26 AM | PERMALINK

I know Gibbs will address the hypocrisy after the fact, but the administration surely knows that McCain, McConnell et al will object. Sure would be nice to see the prez just beat them to the punch and mention the fact that Bush used it about 170 times and M & M previously supported it. You know, basically a preemptive STFU.

Posted by: ComradeAnon on March 28, 2010 at 10:45 AM | PERMALINK

"Obama to GOP: I won, you lost, suck on it."

Indeed. The last week's events really have given him major mojo (he pretty much did the same thing with the Russians on the arms treaty and they backed down). That and I think he's pretty much had it with dealing with the GOP and their petty obstruction. With HCR passed, he feels he's got them reeling and he's pressing the offensive. Good.

John McCain's whining is sickening, but not surprising. It's a combination of two factors, (1) the primary challenge from J.D. Hayworth, which is forcing him to try and outcrazy Hayworth for the love of the knuckle-dragging Neanderthals that make up the GOP primary vote and (2) his continued petty, bitter, spiteful attempt to get vengeance on that boy Obama who took "his" Presidency from him. He's a pathetic sight these days, McCain, and history will not be kind to him.

Posted by: gf120581 on March 28, 2010 at 10:45 AM | PERMALINK
Last time I checked, our current POTUS is a Constitutional expert
I voted for Obama and I want him to succeed. I say that so that readers don't get the wrong impression from what I'm about to say, which is that I find this notion of Obama's being a Constitutional expert or "scholar" to be a bit risible. I stopped reading The Audacity of Hope when I got to the sentence "The First Amendment doesn't give you the right to shout 'fire!' in a crowded theater." Actually people do have the right to shout "fire!" in a crowded theater, and they should do so -- if there's a fire. The essential caveat, as Justice Holmes wrote, is that free-speech guarantees don't give people the right to falsely shout "fire!" in a crowded theater.

Split infinitives are another matter.

Posted by: navamske on March 28, 2010 at 10:54 AM | PERMALINK

I keep reading comments to the effect of, "I hope that Obama now realizes that the GOP isn't interested in bipartisanship." I'm not sure that the President ever harbored illusions regarding the GOP. It strikes me that what the Presdient has had to do is make a good faith attempt to work with the GOP for a couple of reasons.

First, I think that he believes that it's the right thing to do and you can't show good faith without actually making substantial efforts in that direction. Second, as I understand it the President's whole theory of change is based on giving everyone a seat at the table. In the process, those who are not willing to be constructive and make similar good faith efforts will out themselves. In so doing they become politically in effective because everyone knows that they weren't serious and the grown ups can get on with the business at hand.

In short, the President has had to dispel the public's illusions that the GOP is not serious about bipartisanship and governance. From what I've read, that's is the approach that he's brought from his career as a community organizer.

Posted by: AK Liberal on March 28, 2010 at 10:55 AM | PERMALINK

John McCain isn't a reactionary, he's just a plain old asshole.

Posted by: rbe1 on March 28, 2010 at 11:01 AM | PERMALINK

In short, the President has had to dispel the public's illusions that the GOP is not serious about bipartisanship and governance.

Ack. Make that, "...dispel the public's illusions that the GOP is serious about bipartisanship and governance."

Posted by: AK Liberal on March 28, 2010 at 11:12 AM | PERMALINK

" reactionary Republicans "
Finnally, using the correct adj, radicals want things to change, reactionarys want the maintain the status quo

Posted by: joyzeeboy on March 28, 2010 at 11:21 AM | PERMALINK

There is no limit to the hypocrisy of these demagogs.

Posted by: captain dan on March 28, 2010 at 11:34 AM | PERMALINK

Kind of sucks when you go with the "all or nothing" strategy and don't win.

Posted by: danimal on March 28, 2010 at 11:36 AM | PERMALINK

I think Obama did exactly the right thing, and I'm glad he did. I'm especially glad for Becker.

But I really have begun to wonder about Republicans--this whole 'creating their own reality' schtick is just getting creepy. From what they say and how they act, it seems that Republicans believe themselves to be acting in an exciting Hollywood action-thriller blockbuster. You know the plot: a conspiracy ("ACORN") has put a Kenyan Muslim socialist as POTUS, and now he is now "forcing their will on the American people" and bankrupting the nation. So where are the heroes who can save the American Way of Life from certain destruction?

It would be embarrassing--as in, "eww, dude, I don't want to know your delusions"--if they were not so hardcore. It is weird, too, because they are such cardboard cutouts, so fake--Sarah Palin, John McCain, Michael Steele, Michelle Bachmann, Mitt Romney, etc, etc--it is as if their souls have been sucked out and only their bodies remain.

In MY personal SF blockbluster plot, now the liberal hero will discover the little implants in Republican necks. Wow, they all receive synchronized directions from the "hive" run by alien, Roger Ailes! Some good, well-placed explosions later--and maybe some recess appointments--and America will be saved from the ailesian invasion.

Posted by: PTate in MN on March 28, 2010 at 11:38 AM | PERMALINK

ComradeAnon -- Actually, the White House press release did a pretty good job of pre-emptive STFU. A partial sample:

To put this in perspective, at this time in 2002, President Bush had only 5 nominees pending on the floor. By contrast, President Obama has 77 nominees currently pending on the floor, 58 of whom have been waiting for over two weeks and 44 of those have been waiting more than a month. And cloture has been filed 16 times on Obama nominees, nine of whom were subsequently confirmed with 60 or more votes or by voice vote. Cloture was not filed on a single Bush nominee in his first year. And despite facing significantly less opposition, President Bush had already made 10 recess appointments by this point in his presidency and he made another five over the spring recess.

Posted by: Redshift on March 28, 2010 at 12:26 PM | PERMALINK

AK Liberal

You've hit it exactly. I predict that Obama will ultimately destroy the Republican Party by exposing to the entire nation its underlying (insert hyperbolic adjective here) nature. But to do so requires enormous patience -- on both his part and those of us who support him.

Faced with such rank hypocrisy and obstruction on the GOP's part, it would have been easy for Obama early on to satisfy his base by fighting fire with fire. That would have made us feel good, but it would not have worked to build a larger democratic community -- and Obama is at heart a community builder, as you say. Everytime his outstretched hand is swatted away the democratic coalition grows bigger.

When I've been asked what I think about Obama I usually say: He's read and understands his Lincoln. In the hindsight of history we tend to look on Lincoln in awe. But at the time he exasperated his followers. "With malice toward none? With charity for all? What's up with that?"

Posted by: Ted Frier on March 28, 2010 at 1:38 PM | PERMALINK

I have no opposition to recess appointments at all, and I support Obama's recess appointments on this occasion.

The Republicans (like Democrats under Bush) were simply challenging the president to use his power.

Obama has been quite effective lately: he pushed for a health care bill and got one basically because he refused to let the Senate and House give up; he faced off the Russians on the nuclear reduction treaty (appropriately not tying it to anti ballistic missile policy); and now this.

He's carrying out the Iraqi policy that he advocated on his web site during the campaign, and he is carrying out the Afghan policy that he advocated. His strong effort in Afghanistan seems to have helped the Pakistani govt against "foreign" belligerents in the frontier provinces.

We knew that he was smart. Now he's showing that he's effective.

Posted by: MatthewRMarler on March 28, 2010 at 1:48 PM | PERMALINK

McCain, has an interesting if curious definition of "the American People" -- it omits/ignores everyone who doesn't agree with him...which was a plurality if not majority in the last national election.

Likewise with the Republican Congressional caucus -- they do the same thing. I wish someone on the Democratic side of the aisle would remind them and the media that we're "the American People" too.

Posted by: MIchael on March 28, 2010 at 2:14 PM | PERMALINK

Perhaps Obama no longer wants Dawn Johnsen. Unless she does a 180, she would be bitterly opposed to many recent positions taken by Holder's Justice Department. She strongly opposed Bush's security-related power grabs, and Obama has shifted since the campaign.

Posted by: Joe Buck on March 28, 2010 at 2:56 PM | PERMALINK

Sen. Bayh actually had a good take on this situation last month (it was about the filibuster in relation to nominees not being confirmed, but really fits all obstructionism): "The public is suffering. The minority needs to have a right... But the *public* has a right to see its business done. And not routinely allow a small minority to keep us from addressing the great issues that face this country."

Posted by: Hannah on March 28, 2010 at 3:46 PM | PERMALINK

Doesn't McCranky's wife (trollop) have more money than your average demigod? WTF is this dumbassed old fart doing on the stage any more? Somebody get the hook already! I can see McConnell hanging around (because not even the gay deaf, dumb and blind can bring themselves to copulate with such a creature) but McCranky is so tired as not to be believed. Go home to Arizona and retire with your trollop John! I'm sure she's up for the abuse!

Posted by: Trollop (Not Cindy McCain) on March 28, 2010 at 4:12 PM | PERMALINK

Trollop, @16:12,

He's trying to hang around, 'cause Cindy doesn't want him at home and underfoot any more than the Senate wants him. It's one of those "I married you for better and for worse, but not for lunch at home" cases.

Posted by: exlibra on March 28, 2010 at 6:47 PM | PERMALINK

NYT has another article on the subject this afternoon. Mostly from the Repub point of view (oh, well...) What I found amusing is that the author quotes Graham, extensively, and then mentions Graham as being one of the Repub Senators who'd, in the past, cooperated with the Dems but who now says he won't any more.

The past instances of such cooperation are mentioned (in the last para), with one of them going all the way back to the early years of the Clinton admin. The last example of such excess of amiability? 2005. That's the last year Repubs had majority, so it doesn't say anything about the *Repub* willingness to pull the American apple cart together; all it says is that *Dems* cooperated. Any signs of cooperation since Jan 20,'09? None given. And I'm supposed to get all upset, because Graham's gonna get even worse that he's been? Like it makes any difference to me whether I drown in 10 feet of water or 6...

Posted by: exlibra on March 28, 2010 at 7:16 PM | PERMALINK

I'm constantly tempted to over-intellectualize, well, just about everything. But grade one logic applies here. McCain and his cadre are sore losers. Period.
We all saw what the jocks did in HS when the brains won the student-body elections. Vandalism and silliness. Republicans appear just as serious about their responsibilities to the nation.

Posted by: OKay on March 28, 2010 at 10:24 PM | PERMALINK

I am amazed calling Politicians like McCain who spent several years in a Vietnamese prison defending this country a whimp. One thing I do see is this is no longer a counrty By the People Of the People it is a socialistic country. The Republicans havent backed away from this fight and things may not look so bright now.

I also saw that the republicans did vote they didnt wlak out. They havent asked to impeach the president either. When the November elections are over lets see how the shoe still fits. And lets not talk about pregnant chads or busted machines or people not making it to the polls. I also think when the Acorn buses pull up at the taxpayers expense that maybe they should check at the door the legality of all the voters and pick all parties up.

Also people need to remember that in the 1960's during the race wars the corrupt racist politicians from the Democratic Eastern States are the same ones that serving now. Remember the wonderful Health Care Bill just approved by the Democrats well how many of those same Democrats are being made to sign on too that same bill. If its so wonderful why not lead from the front and be the first ones to sign on.

Robert C. Nostrand

Posted by: Robert Nostrand on April 2, 2010 at 10:29 AM | PERMALINK



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