Obama Recess Appointments: Confronting Senate Confirmation Obstruction in Summer 2010

With the Senate's Memorial Day recess coming to a close, Barack Obama should use his recess appointment authority to fill critical vacancies in his administration. As he is well into the second year of his presidency, Obama should exploit every Senate recess during summer 2010 to ensure a fully staffed federal government by autumn.

Our nation's environmental, energy, financial, and health care challenges grow more daunting daily. Meanwhile, over two hundred top federal posts remain vacant due to confirmation obstruction.

Two generations ago, John F. Kennedy stated: "Our problems are man-made, therefore they may be solved by man." President Kennedy knew well the importance of employing the brightest women and men for government service. Jack Kennedy assertively used his recess appointment authority to staff government to meet challenges.

Seldom has our nation been in greater need for the best and brightest for government service to provide competent regulatory oversight and effective executive administration. Never in the history of the Republic has the Senate's traditional advice and consent confirmation function been so degraded.

At the time Obama made his first 15 recess appointments in late March 2010, he announced he would not "allow partisan politics to stand in the way of the basic functioning of government." With the stroke of a pen, Obama staffed the quorum-deficient National Labor Relations Board, the Equal Employment Opportunity Commission, and several critical treasury, homeland security and trade posts. His bold appointment feat was praised as a new leadership beginning.

For a few weeks following the recess appointments, Obama appeared to have some appointment momentum. However, Senate Republicans recently resumed blocking his excellent nominees with slow walking delays, secret hostage holds, and crude filibuster threats.

Republicans blocked over 80 confirmations in their latest obstruction attack hours before the Senate's Memorial Day recess. The minority leadership defaulted on a unanimous consent agreement to confirm the group of 80 nominees. Confirmation gridlock redoubled as the Senate slipped out of town.

Unprecedented Obstruction

Both short and long term critical issues abound, yet the government remains critically understaffed. Recent revolving door administration resignations have only added to the government's vacancy problem. Scores of important executive, regulatory and court vacancies damage our nation's progress. Empty posts frustrate and harm governance efforts in a range of economic, environmental, security, foreign relations, and environmental areas.

Partisan obstruction still hobbles the upper chamber in both legislative and confirmation matters. The obstructionists take advantage of the Senate's arcane customs. By simply objecting to the "unanimous consent" process, a lone senator can ensure gridlock. Hostage-holding for petty partisan payback, provincial tribute demands, and ideological purges have become the norm, but should not be acceptable. The blocks and delays are completely unrelated to the nominees' qualifications.

Recent media attention focuses almost exclusively on the Supreme Court nomination of Elena Kagan to the neglect of the government-wide vacancy crisis. The exception is found in a late-May Atlantic article by James Fallows describing the partisan derailing of the confirmation of over 80 officials.

"Weakening America: Mitch McConnell Shows How" calls attention to the cost of confirmation obstruction caused most recently by the Senate minority leader's refusal to honor a unanimous consent agreement to confirm the large group of nominees. Just hours before the Senate recessed for its Memorial Day break, the Senate minority once again thwarted the traditional advice and consent process.

Confronting Obstruction With Legitimate Appointment Alternative

The Constitution's framers intended the Article II, Section 2, Clause 3 process to ensure the government would remain fully operational. With terms lasting until the end of the next Senate session (late 2011 for instant vacancies), an appointed official has a significant tenure before the president can then re-recess the appointee.

During these last days of the Memorial Day recess and through all subsequent Senate recesses during summer 2010, Obama should sign many more commissions putting his nominees to work.

The American people will support his leadership. They want a government that works and works for them.

Summertime Audacity

Now in the seventeenth month of his presidency, it is nothing less than Obama's constitutional duty to staff the government.

Americans are appropriately angry with secret holds and rank partisanship preventing the government from efficiently functioning. Obama's first 15 recess appointments were widely praised; the president's leadership was deemed "emboldened."

Obama is right to expect and forcefully demand that Senate Republicans end their confirmation obstruction, and allow timely floor votes for his nominees. During Summer 2010, however, Obama should also audaciously use his recess appointment authority at every Senate recess opportunity.