How Obama Should Bypass the Appointment Obstructionism

As a partial solution to appointment obstructionism, President Obama can and should exercise his unilateral authority and fill many federal vacancies with the stroke of a pen -- during any Senate break of his choosing.
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For both health care reform and scores of blocked nominees, President Barack Obama now asks for "simple up-or-down votes." Is it a mission impossible to find just a few Republican Senators who would break from their extreme obstructionist GOP caucus?

Jim Bunning's Senate floor tantrum against extending unemployment benefits and his continued appropriation hold is a recent example of GOP obstruction extremism writ large.

President Obama is right that health care reform cannot wait another generation. In related analysis, the ongoing GOP obstruction of the appointment process is also causing immediate and long lasting harm. Meanwhile, Senate procedural precedent is being established that will do serious constitutional damage to the appointment process for future generations.

As with health care reform, Barack Obama sincerely wants a bipartisan solution to the confirmation stalemate. Obama wants to be the president for all Americans. He wants to give reasonable Republicans an opportunity to end the GOP caucus' obstruction against his nominees.

As CNN journalist Candy Crowley's recent interview with Senators Richard Lugar and Patrick Leahy reveals, bipartisan relationships between seasoned Senators exist. It is time for such real Senate leaders to step forward.

As with health care reform, the time frame for a bipartisan solution to the confirmation conflict is narrow - days not weeks. Thus, this proposal for establishment of a "New Gang of 14."

The Senate's "New Gang" must be formed immediately. As Barack Obama recently stated: "Let's get this done."

Resisting Recess

In an effort to engender cooperation in ending Republican confirmation obstruction, President Obama did not make any recess appointments over the February Senate break. After receiving a token 29 nominee confirmations before the recess, Obama reserved his right to use the unilateral appointment authority while demanding future Senate appointment action.

Returning from recess with obstructionist batteries recharged, however, individual Senate Republicans continue to abuse procedural precedent to block Barack Obama's nominees. The GOP caucus supports the obstruction and procedural abuse. The resulting high level vacancies hobble the national government.

The confirmation obstruction, like the health care reform obstruction, appears to be part of a larger effort by Jim DeMint's extremist ilk to "break" Barack Obama. Republican leaders must stop the abuse.

Obstruction Harm Worsens Weekly

Hillary Clinton detailed the harm resulting from Republican appointment obstruction. "We're now more than a year into a new administration and whether you agree or disagree with a particular policy, a president deserves to have the people that he nominates serving him," the Secretary of State informed the Senate Appropriations Committee.

At the end of February, Clinton testified to the harm obstruction causes the nation's international reputation with both allies and enemies. Republican confirmation obstruction damages the nation's ability to "demonstrate the kind of unity and strength and effectiveness that I think we have to in this very complex and dangerous world."

Extreme Senate slow walking, committee agenda manipulation, anonymous tag-team holds, and blatant extortion filibusters continue unabated. Richard Shelby's continued $45 billion Alabama ransom hold against three defense nominees is the grossest obstruction example.

Establishing Senate Precedent: Pity the Next President

With the 111th Senate obstruction as precedent, a future president will have to be assured of a partisan Senate 60-plus supermajority in order to staff the national government. Perhaps, at their core, the extremist Senate Republicans are pessimists. Perhaps they cannot imagine another Republican in the White House who will expect timely Senate confirmations. History teaches that there will again be a Republican in the White House.; later rather than sooner considering the shallow GOP presidential bench.

But, pity the next Republican president who expects timely Senate confirmation of any nominee. Far beyond the escalating cycle of partisan confirmation payback seen in the past two decades, future Republican administrations will pay a high price for the 111th Senate minority's obstruction precedent.

Robert Byrd's Lesson: Senate Precedents - "The Keys to the Kingdom"

In The Audacity of Hope, Barack Obama relays that Robert Byrd advised the Illinois freshman to "Learn the rules. Not just the rules, but the precedents as well." during his first visit to Byrd's history-laden office. Obama describes how Byrd "pointed to a series of thick binders" each with a handwritten label" identifying the rule and precedential history. Byrd cautioned: "Not many people bother to learn them these days;" but the Dean of the Senate promised Obama that the rules and precedents would "unlock the power of the Senate. They are the keys to the kingdom."

How long will ongoing Republican obstruction of the 111th Senate alter the institutional function of advice and consent? Obama describes Senator Byrd's life as having been "the struggle of warring impulses, a twinning of darkness and light." There must be a particularly dark corner in Robert Byrd's office for the 111th Senate's Republican obstruction precedent.

An Alternative to Recess Appointments

In February 2010, the Senate Majority Leader actually encouraged President Obama to use recess appointments -- circumventing the upper chamber. Harry Reid stated on the Senate floor: "Recess appoint them all, recess appointment them all." The week before, Harry Reid pleaded with Republicans to stop the obstruction to avoid recess appointments: "What alternative do we have, what alternative do we have?" Reid is correct that recess appointments are needed.

I have argued recently, and during three prior presidencies, for an assertive use of the executive's recess prerogative. But are recess commissions the only alternative?

There must be a few Republican Senators deeply troubled about how their Senate is operating, or rather not operating. They surely understand the importance of Senate procedural precedent and the damage of obstruction to that precedent.

When Obama nominees have made it to the Senate floor for an up-or-down vote, most all Republicans behave like Senators rather than party hacks. They take their "advice and consent" duty seriously, and they vote in favor of confirmation of Obama's well qualified nominees by wide margins.

It is a classic physic split -- loyalty to party caucus versus fidelity to their constitutional role. While many Obama nominees were regularly blocked for months for no justifiable reason, they were then confirmed by wide 95-5 (or better) margins.

New Gang of 14: Do the Math and Show Your Work

In 2005, when Democrat filibuster threats against a number of Bush judicial nominees (select confirmation barriers that pale in comparison to the present Republican obstruction), the Republican majority came close to enacting the Constitutional (a/k/a Nuclear) Option.

The solution was found with the bipartisan Gang of 14 Senators whose "memorandum of understanding" was an explicit bargain. Seven Republican signatories would not support the Nuclear/Constitutional option for the remainder of the Senate session, in direct exchange for seven Democrat signatories agreeing not to block any Bush judicial nominees except "under extraordinary circumstances."

Is it possible to create a "New Gang of 14" based on a new and improved gang agreement? The agreement would need to apply to all types of nominees - executive, regulatory and judicial. And, the math for the "New Gang of 14" would need to be malapportioned: 3 Republicans (to guarantee cloture) plus 11 Democrats (to prevent a majority implementing the Constitutional Option in the 111th Senate).

Only 3 Republicans are needed to agree to break caucus ranks to guarantee cloture (even with a couple Democrat dissenters on each nomination). Three would eliminate holds and filibusters against any nominee at least through 2010. With cloture guaranteed, the threat of a hold would be toothless. As with the 2005 Gang agreement, there would be an out: No holds or filibusters "except under extraordinary circumstances of moral conscience."

Eleven Democrats would agree not to participate in planning or implementing a Constitutional Option for the remainder of the session. (11 Democrats so bound would leave 48 Democrats without a majority to proceed with the option.)

Finding 3 Republicans for the New Gang of 14

There are likely 11 Democrats who would agree to resist the increasingly strong calls for a Constitutional Option, as per the 2005 agreement, until the next session.

But where to find the 3 Republicans for the New Gang of 14? First, who were the Republican members of the old gang? Three have left the Senate (John Warner, Mike DeWine and Lincoln Chaffee).

The "Gang Change" is John McCain, a principle leader of the old Gang of 14. Unfortunately for the nation, McCain misread the 2008 Electoral College results. Winning second place did not make him "Obstructionist in Chief." McCain's grudge-hold has kept Craig Becker blocked from the scuttled National Labor Relations Board. Who would have expected John McCain to turn sore-loser obstructionist?

Each of the remaining members of the old Gang -- Susan Collins, Olympia Snow and Lindsey Graham - is a potential New Gang member. Each has been known to put the integrity of the Senate and welfare of the nation above petty, short-term partisanship. Graham has the unique opportunity to serve both South Carolina and the nation by joining the New Gang. Graham could use the opportunity to formally break from his delegation's extreme embarrassments -- Jim DeMint and Joe Wilson.

Other New Gang members might include Orrin Hatch and Richard Lugar. Each senator is a thoughtful, even scholarly, public servant who represents his state in the best Senate tradition. Lugar has broken with the GOP caucus to support Justice Department nominee Dawn Johnsen in her year-long confirmation battle. Hatch always gives special attention to fair play for nominees in the Judiciary Committee.

As former presidential candidates, both Lugar and Hatch understand the executive's rightful prerogative in appointments.

A final suggestion for membership in the New Gang is Alabama's other senator Jeff Sessions. As Ranking Member on the Judiciary Committee, Sessions knows well how to put a nominee in the confirmation crosshairs.

However, Jefferson Beauregard Sessions, who took over Orrin Hatch's ranking role on Judiciary, appears increasingly judicious in this leadership role. Perhaps his long-ago, personal experience with the harsh confirmation process seasoned him for this important position.

Have no doubt; Sessions is still a strong partisan. As such, however, Jeff Sessions may see a not so distant time when he will be Chairman of the Judiciary Committee. As a strong GOP partisan, Jeff Sessions knows there will someday be a Republican president who will seek - and have a constitutional right to expect - timely confirmation action on nominees. Sessions the constitutional lawyer must know that the Republican caucus is establishing dangerous and damaging Senate obstruction precedent.

(Author's disclaimer: Jeff Sessions was the U.S. Attorney of the Southern District of Alabama when I served for two years as an elbow law clerk for a U.S. District Judge in Mobile. In and out of the courtroom and chambers, I observed Sessions as a lawyer of the highest ethical and intellectual standards. He expected nothing less from federal prosecutors in his employ. I witnessed Jeff Sessions being a progressive leader for Alabama.)

If Hatch, Lugar, Sessions, or any of the referenced Republicans, were signatories to a New Gang of 14 agreement, their cloture word would be sterling.

Last Chance to Save Senate Precedent

It's not too late for 3 Republican senators to take honorable action. They can still change the historic precedent of the 111th Senate. If there are not 3 Republicans to join the New Gang of 14 for the sake of Senate precedent; then Democrats must invoke the Constitutional Option.

Regardless, as a partial solution, President Obama can and should exercise his unilateral authority and fill many federal vacancies with the stroke of a pen - during any Senate break of his choosing. As Obama now says: "Let's get it done."

(Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law. The views expressed are the author's alone and do not reflect those of CUA).

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