No president has abused the power to make recess appointments as much as Barack Obama. As I discussed earlier, the power has been increasingly abused — by presidents of both parties — as the Senate procedures for confirming nominees have become ever more protracted and, often, partisan. On Sept. 17, Obama named Elizabeth Warren to a White House advisory job that does not require confirmation. But it makes her, effectively, the head of the new Consumer Financial Protection Bureau, a job that requires Senate confirmation. The Senate had signaled that her confirmation was probably not possible.
Perhaps it’s a sign of Obama’s declining political clout, but the Hill is reporting that the Senate will technically not go into recess from this week until after the election. Instead, it will have pro forma sessions on Mondays and Fridays, in which the Senate will be called to order, the absence of a quorum will be noted, and the Senate will then adjourn.
This political kabuki theater was routine in the last two years of the Bush administration to prevent President Bush from making recess appointments, and the Senate Minority Leader, Mitch McConnell, was able to force it this time by threatening to invoke a Senate rule that requires all pending nominations to be returned to the executive branch when the Senate goes out of session for a protracted period unless unanimous consent is given to waive the rule. That would have meant that all those nominations would have had to be renominated and the whole process repeated.
It is to be hoped that the Senate and the White House will end this game by agreeing to a permanent compromise: that the Senate will agree to act on all nominations within a set period of time (say two months) and no longer allow the use of the filibuster with regard to nominations, and the President will agree to use the power to make recess appointments only in cases where the public good requires the office in question to be filled immediately, the reason the Founding Fathers gave the president the power in the first place.