Dems Urge Obama to Use Recess Appointments

During his State of the Union address, Obama slammed Republicans over delays in confirming his appointees, one week after the Transportation Security Administration (TSA) nominee Erroll Southers withdrew his name from consideration. Southers was tired of the politicking over his confirmation to the airport security agency; some Republicans feared that he would let employees bargain collectively, and there was also a controversy over a background check of his ex-wife's boyfriend. "The confirmation of well-qualified public servants should not be held hostage to the pet projects or grudges of a few individual senators," Obama said.

But eight years ago, Obama's predecessor was doing a lot more than talking in the face of a recalcitrant Congress. In the summer of 2001, President George W. Bush was gearing up for a fight with the Democratic Senate over his labor and judicial nominees. Some Democrats were placing holds on Bush nominees to judgeships, slowing down the entire confirmation process. By August, the president lost his patience. The term of the only Republican on the National Labor Relations Board, Peter J. Hurtgen, had expired. With members of Congress back at home for the August break, Bush put him to work for the rest of the congressional session using a "recess appointment". The president can name appointees directly into positions during Senate breaks, and presidents since George Washington have done so. The option is written into the Constitution—unlike the hold, which is nothing more than a Senate formality.

Democrats were none too pleased with the recess appointment, but it galvanized Bush's base. The Journal of Commerce, for instance, applauded the decision, writing in an opinion piece: "Sen. Edward Kennedy, who chairs the Senate Labor Committee, would do well to confirm such a package [of nominees] quickly, lest he face recess appointments far less to his liking."

By this date in the first term of the Bush administration, the president had named a spate of appointees in congressional recesses, including Otto Reich as an assistant secretary of state; Eugene Scalia to head the Department of Labor; and two each to the National Labor Relations Board, Securities and Exchange Commission, and National Credit Union. Bush had scores of nominees pending in the Senate and was going to bat for them, pushing back at Democratic obstructionism and procedural maneuvering (itself a product of Republican obstructionism at the end of the Clinton administration—during which they prevented a vote on one judicial nominee for nearly four years).

One year into the Bush administration, there were 70 appointees pending. One year into the Obama administration, there are more than 200. Bush had used the recess appointment 10 times. Obama has not yet even mentioned the tactic. (Update, published 5:37 p.m. ET: On Tuesday afternoon, Obama indicated he might use recess appointments, during next week's recess: "If the Senate does not act, and I made this very clear, I will consider making several recess appointments during the upcoming recess because we can't afford to let politics stand in the way of a well functioning government.") With Republicans holding up more nominees, Democrats are now calling loudly for Obama to get into the scrum—and wondering where he has been for the past 12 months.

Indeed, the Southers affair was just the tip of the iceberg. Now, Republicans are threatening to filibuster Craig Becker, an Obama nominee to the National Labor Relations Board. With its Senate supermajority gone, the Democrats will likely give up on Becker. And, most extraordinarily, last week, Sen. Richard Shelby (R-Ala.) slapped a blanket hold on every pending Obama nominee in Congress, over two pork-barrel projects he wants approved: a multibillion-dollar contract for air-to-air refueling and an improvised explosive device laboratory for the Federal Bureau of Investigation. White House spokesperson Robert Gibbs called it "silliness," and Republican leadership distanced itself from the blanket hold—so Shelby quietly lifted it on Monday.

Democratic senators—most notably Majority Leader Harry Reid—have criticized Republican obstructionism all year. And in recent days, Democrats have said privately that Obama simply has not done enough to get his nominees confirmed. They contend the White House has failed to communicate with relevant agencies and Hill figures regarding nominees. "I became a political football in a game that had nothing to do with increasing our security posture. It needed to stop," said Southers in an interview after withdrawing his name. "Every week it seemed like I was getting knocked back on my heels, with no protection."

Department of Homeland Security staffers, who asked not to be quoted criticizing the administration, describe dismay at watching as the administration failed to counter false or overblown concerns about his nomination and failed to publicly throw its weight behind its nominee. The nonresponse disconcerted Southers and earned the Obama administration vocal opprobrium from the left, from labor leaders to Rachel Maddow. A spokesperson from the American Federation of Government Employees described it as "incredibly disappointing," particularly for a "perfect candidate" such as Southers. "The first responders to 9/11 were unionized," the spokesperson said, referring to New York's police and firefighters, among other agencies. "But, of course, we didn't hear about that."

On the Hill, Democratic staffers also express dismay over the lack of pushback. "We're all wondering, where are they?" one Senate staffer without permission to speak on the record tells NEWSWEEK. Remembering how George W. Bush's administration fought for its prized nominees, another staffer adds, "It's like a bad dream coming back to me."

Meanwhile, the White House has come under criticism for months now for lagging in putting important candidates up: no nominees, no confirmations, and no confirmations, no leadership. The Obama administration took eight months to nominate Southers to head the TSA and eight months to nominate Alan Bersin to lead the Customs and Border Protection Agency.

Finally, the Obama administration has failed to use its trump card—the recess appointment—or even mention it as a possible political tool up until now. Homeland Security Secretary Janet Napolitano pushed for a recess appointment for Southers, which would have let him work until December 2011, at least. But, from the White House, silence. (Assistant press secretary Nicholas Shapiro declined to respond directly to critics, but directed NEWSWEEK to two prereleased statements on Southers.)

Still, there is opportunity in this procedural crisis. The blanket hold over pork-barrel projects, particularly given Obama's commitment to deficit-cutting measures, provides the Democrats with a cudgel. And if Republicans won't compromise, then it might be time for Obama to follow in Bush's footsteps, loathe though he may be to do so, and exercise some executive power—for the next recess is only days away.