Editore"s Note
Tilting at Windmills

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July 8, 2010

'BADLY BROKEN'.... The negative response among lawmakers to President Obama's recess appointments yesterday were hardly unexpected. Republicans complained because that's what they do, and at least one Senate Democrat complained, apparently motivated by institutional pride.

When White House reporters pressed Robert Gibbs on this yesterday, asking why it was necessary to appoint Dr. Don Berwick to lead the Centers for Medicare and Medicaid Services, the press secretary noted the entire nominating process has broken down, which in turn forces the president's hand.

...I think it's the type of politics that demonstrates just how badly broken the appointments process is. And the President is going to install people that need to be installed for this government to run effective and efficiently. In this case, because the appointments process is clearly broken, he did so through a recess appointment."

Putting aside the merits of the Berwick move, can anyone come up with a credible reason to disagree with Gibbs' criticism of the system? Can anyone seriously look at the existing process and think it's an effective way for an advanced democratic government to operate in the 21st century?

A civics textbook would make it seem simple -- the president chooses a nominee for a government post, and the nomination goes to the Senate. A relevant committee holds a hearing and considers the nominee's qualifications. From there, the nomination goes to the Senate floor, and if a majority approves, he or she can get to work on the country's behalf.

And that was a fairly straightforward system for most of American history. But as we've seen of late, that process has completely fallen apart. Some of this has to do with the Senate having confirmation authority over far too many administrative positions, but most of it has to do with blind, petty obstructionism -- holds and/or filibusters that can delay consideration of nominees for months, and in some cases, well over a year.

In April, the Senate voted to confirm Lael Brainard to be an Under Secretary of the Treasury for international affairs -- a genuinely important post, especially in the midst of a global financial crisis. Her background and qualifications are impeccable, but her nomination was delayed for 13 months -- because Senate Minority Whip Jon Kyl (R-Ariz.) was unhappy with administration enforcement of prohibitions on internet gambling.

In an even more infamous example, a month later, Sen. Richard Shelby (R-Ala.) blocked votes on Pentagon officials because he wanted to be paid off in pork.

Fiascos like these aren't rare at all -- they've been entirely common for the last year and a half.

As regular readers know, I'm not a big fan of recess appointments, no matter which president is making them. But given the enormous number of nominees waiting for confirmation, and endless Republican tactics to undermine government effectiveness, I just don't see how the White House has any choice.

If the GOP doesn't like it, they can start allowing up-or-down votes on pending nominees.

Steve Benen 9:25 AM Permalink | Trackbacks | Comments (17)

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But the very nice Republicans on NPR reported last night during one of their vapid economic reports that Dr. Don Berwick is considered to be a crazy activist with really principled opposition. Sort of a Democratic verison of John Bolton.

Who are we to believe?

Posted by: Ron Byers on July 8, 2010 at 9:35 AM | PERMALINK

Our nation's constitutional democracy can only work if all parties come to the floor with reasoned argument ultimately in search of workable compromise! Yes, our political institutions are broken, and in particular, the legislature is the most egregiously so!

Smart voters would do well to avoid candidates running for office who actively denounce government as they are the once-elected-ones who have proven so damaging to our political institutions with their motives of NO, their wont to obfuscate instead of engage, and their desire for personal gain at the expense of good government!

Let the fall campaigns begin! -Kevo

Posted by: kevo on July 8, 2010 at 9:40 AM | PERMALINK

I've suspected for some time that Republicans are hysterical about Obama's "dictatorial" ambitions because, to paraphrase Jay Leno, they kept the receipts. They gave enormous executive powers to Bush, defended his use of procedures like recess appointments and signing statements, and rejected any claim that those actions subverted the Constitutional separation of powers. That, of course, was precisely what they wanted, and at least one blogger went so far as to say that he should just assume the Presidency for life. None of the Bush apologists could grasp the notion that those powers might someday be in the hands of a President of the other party, because Karl Rove had promised them a permanent Republican majority as long as they just did what they were told. Now, they see Bush's powers in Obama's hands, and they are scared. Liberals aren't too happy, either, about the fact that Obama has retained some of Bush's claimed authority to detain prisoners indefinitely without trial or to withhold "classified" papers that would prove that interrogators at Guantanamo committed at least three homicides. But if the Republicans want to know who created and justified those claims of executive power, they should go look in a mirror.

Posted by: T-Rex on July 8, 2010 at 9:42 AM | PERMALINK

Possible administration response:

"Republicans are using arcane rules to block our nominees, we're using arcane rules to put them in place."

Posted by: eightnine2718281828mu5 on July 8, 2010 at 9:48 AM | PERMALINK

The White House ought to announce a blanket policy that any nomination older than x months will be automatically given a recess appointment at the first opportunity. By making recess appointments routine, they could break the gridlock unilaterally, and eliminate the political resonance of individual appointments ("Scandal! They recess appointed so and so!") because all appointments would work that way.

Alternatively, the Senate Dems could grow a pair and shut down the obstruction. It'd take some ugly parliamentary maneuvering, but that sort of thing never stopped the Republicans back when they controlled the place. (I know, pigs flying etc.)

Posted by: jimBOB on July 8, 2010 at 9:48 AM | PERMALINK

"Alternatively, the Senate Dems could grow a pair"

Yeah.

Phone me when that happens.

Posted by: getaclue on July 8, 2010 at 10:13 AM | PERMALINK

"If the GOP doesn't like it, they can start allowing up-or-down votes on pending nominees."

No, if the G*P doesn't like it, they can do what the Democrats did when they really didn't like one of Dubya's choices: Keep the senate in session.

But the G*P isn't interested in actual governing. All they want to do is make the make the Democrats look bad so they can look good.

Posted by: Marko on July 8, 2010 at 10:27 AM | PERMALINK

Yes, the biggest mystery here is why the Dems lack the will to fix what is so clearly broken, by any means necessary (since Bush's legacy to the presidency is a new level of autocratic power). It only raises the question of who benefits from things being the way they are. Do Dems like being able to shrug and say, "Well, we tried, but those mean Republicans wouldn't let us do it!"?

Posted by: Gaia on July 8, 2010 at 10:59 AM | PERMALINK

This development is genuinely disturbing. While I think President Obama has used the recess power sparingly and generally with valid nominees, the whole trend points toward an actual breakdown of American governance. We certainly don't need the accrual of even -more- power to the office of the President.

Ironically, by insisting on their petty prerogatives, Republicans are likely to reduce the Congress to complete irrelevancy.

I've been worrying about this for a while now and it doesn't seem to be getting any better.

Posted by: Bernard Gilroy on July 8, 2010 at 11:04 AM | PERMALINK

Steve, if the Emanuel administration was serious about breaking the gridlock, it would announce a policy of "You give us a vote within 100 days of an announcement, or we'll recess-appoint everyone."

I'm tired of hearing the president and Communications Director Obama complain and not act. This is why people like Republicans more than Democrats-- that's how they handle it.

The problem is that the wieners who were elected to the Senate allegedly from the same party would be upset, like Baucus was.

Posted by: Woodrow L. Goode, IV on July 8, 2010 at 11:26 AM | PERMALINK

I'm sorry for all of you people that think the President did 'a really bad thing'. When the Senate acts like 6th grade bullies and jobs don't get done because of it, then the ADULT steps in and appoints someone. Do any of you people WORK? This is exactly how it works in business. When the process breaks down you don't wait 'til it's fixed. You take care of the ISSUE and then go back and fix the problem. What is wrong HERE is that this is not publicized on every channel in America.

Posted by: SYSPROG on July 8, 2010 at 11:33 AM | PERMALINK

If the GOP doesn't like it, they can start allowing up-or-down votes on pending nominees.

That would be the lesson any rational person would take away from this. Unfortunately, when hate, hate, fear and self-righteous indignation reach the levels that they have among conservatives, the capacity for rational thought goes out the window.

To the modern conservative mind, emotional outrage is more important than who gets appointed. These people would rather scream, shout and stomp their feet than govern.

In other words, the chances of conservatives learning anything from Obama's recess appointments approaches zero. After all, that would mean passing up a perfect opportunity to play the victim.

Posted by: beep52 on July 8, 2010 at 11:37 AM | PERMALINK

Steve, so far the WH has (mostly? exclusively?) nominated appointees who have already been vetted. In light of that, this seems like a brush back pitch to me. By making a high profile recess appointment that bypasses even the vetting process in the Senate, Obama might be giving the GOP+Ben a taste of what happens if they fail to move on appointees in a timely manner. It's a theory, at least.

Posted by: BattleCobra90000 on July 8, 2010 at 11:41 AM | PERMALINK

Said it before and I will say it again: if they put Caligula's Horse in the United States Senate, it would double the collective IQ in that room. If the horse was a Republican, it would quintuple the collective IQ of that caucus.

Watching the dysfunction of the American government now is reminiscent of the last days of the old Roman Republic, and shows why most Romans were glad to see Caesar Augustus come along. That's not the road we want to travel, but the Republicans are doing a great job of wrecking the Republic.

Posted by: TCinLA on July 8, 2010 at 12:09 PM | PERMALINK

It's worth noting that when a vote finally comes for many of these long-delayed nominees, the votes are nearly unanimous. A few months ago, I think Steve wrote about someone who had languished for a year, then received a 97-0 confirmation vote. But because the Senate rules allow a single Senator to gum up the works, requiring the body to spend precious time waiting for motions to "ripen", the leadership must push nomination approvals to the bottom of the 'to do' list.

What I don't understand is why they don't bundle nominees together. Is that allowed? For example, when Petraeus went up for a confirmation vote, attach a few dozen other appointees and dare the Republicans to vote against the General.

Posted by: meander on July 8, 2010 at 12:37 PM | PERMALINK

I think the WH should make all the recess appointments it needs, no comments, no explanations. JUST DO IT. In the long run it will demonstrate to the obstructionists who's Boss, and it's not them!

Posted by: Varecia on July 8, 2010 at 3:20 PM | PERMALINK

@Varecia: Isn't that what Dubya did? And if the G*P doesn't like it, they can keep the senate in session.

Posted by: Marko on July 8, 2010 at 5:01 PM | PERMALINK




 

 

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