Partisan “leaders” are now chosen, weeks ahead of the Republic’s 112th Congress. Now is the time to confirm Executive Branch leaders for the next two years. It is past time to appoint leaders for independent regulatory agencies and leaders for our federal courts.
Barack Obama reminded us that “Leadership isn’t just legislation” in his 60 Minutes interview. Leadership depends on an assertive and effective appointment process.
A central lesson of the midterm elections is that an understaffed Administration cannot effectively communicate its accomplishments, engender public confidence or timely tack when off course. For 22 months, the Obama Administration has been undermined by Senate confirmation obstruction.
As the president recently described: “during the financial crisis, half my Treasury slots weren’t filled — couldn’t get them filled. And this is a time when we were worried that the entire financial system was melting down.”
Obama needs an appointments reset.
Pat Buchanan’s Halloween prediction came true: “Tuesday, obstructionism reaps its reward.” Tea Party electoral successes are heralded as a mandate for obstruction escalation. Republicans of all stripes are doubling-down on obstruction.
In mid-November, a group of partisan, conservative activists warned Majority Leader Harry Reid “not to use the ‘lame duck’ session” for votes to confirm “any nominees for federal office.” Obama’s opponents are willing to hobble the government in order to defeat the president.
Failing to Call the Senate’s Bluff
Obama sent a wrong signal in not signing recess commissions to challenge the Senate’s “pro forma sessions,” which were orchestrated during the six week campaign break in an attempt to thwart recess appointment authority.
As I argued in the National Law Journal and a companion post, the Senate scheduling shenanigans did not trump the president’s constitutional authority to recess appoint. Just days later, two former Bush Justice Department officials placed a Washington Post op-ed which also encouraged Obama to “call the Senate’s bluff” by making recess appointments.
Since President Obama still lacks a permanent Office of Legal Counsel head (his nominee was blocked for over a year), it took Bush’s acting OLC head to encourage Obama’s fulsome exercise of Article II, Section 2 appointment authority.
Is it Too Late to Learn Hardball?
The president must fight and win the appointment wars — using all legal weapons in his arsenal. In Peter Baker’s “Education of a President,” Obama reported learning hard partisan lessons, while his aides ruefully accepted that DC is not “on the level.” It is late; but not too late, to apply tactical lessons learned to the appointment process.
Barack Obama has time to follow William Grider’s instruction to “learn hardball.” The president must actively campaign for Senate confirmation of the women and men he needs to effectively govern.
Obama must demand confirmation action for all critical executive posts with a strong lame-duck push for James Cole as Deputy Attorney General and Jacob Lew as budget head. For federal justice’s sake, Barack Obama must continue to demand immediate floor votes for 23 long-blocked judicial nominees.
Appointments by All Means: Traditional, Advising, Acting and Recess
It’s too obvious to say that Obama needs a fully staffed government. The Administration must keep the traditional nomination queue full while Obama regularly uses his bully pulpit to demand Senate confirmation votes.
In addition to key executive and regulatory positions, Obama’s focus should be on the confirmation fight for federal judges.
Obama is duty-bound to use any means available to fill critical posts including more of his creative solutions (like his naming Elizabeth Warren as dual advisor/counselor to stand up the Consumer Financial Protection Bureau).
To clear the growing appointment backlog, the president must substantially increase and regularize the recess commission alternative during all future Senate breaks. Despite historic Senate obstruction of his nominees and critical vacancies, Obama has signed only 22 recess commissions.
Obama should recess appoint key posts during the Senate’s upcoming Thanksgiving break, and then continue to sign commissions during the formal “intersession” recess between the 111th and 112th Senate.
With Republicans doubling-down on obstruction, Barack Obama needs all the leadership help he can get. First, he needs to help himself to a fully staffed government.
(Victor Williams is an attorney in Washington D.C., and a clinical assistant professor at Catholic University of America School of Law.)