Escalating Bad Faith, Part I: Recess Appointments

This week conservatives had a new reason to be outraged at President Obama: He appointed Richard Cordray head of the new Consumer Finance Protection Bureau, plus he added three members to the National Labor Relations Board.

What’s the problem with that? Well, these are recess appointments, a power that the Constitution gave the President so that vital posts wouldn’t go unfilled during the months when Congress was out of session.

In the era of cell phones and jet planes, recess appointments are an anachronism, because it’s quick and easy to call Congress back into session for anything really important. But in the last few administrations they’ve become part of an escalating power struggle between Congress and the President. As the struggle continues, the positions of both institutions (under either party) get further and further from anything the Founders wanted or should have wanted.

The point of this series (for which recess appointments are just the most timely example) is to highlight a crisis that gets very little attention in the mainstream media: escalating bad faith in government. Whoever started it (being a Democrat, I see most fault on the Republican side), these downward spirals are very hard to stop, and they’re extremely dangerous to the future of democracy.

History. The recess-appointment struggle starts with Article II Section 2 of the Constitution:

[The President] … by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

For years that clause was interpreted to mean that the two branches would work together in good faith: The President would nominate reasonably acceptable people and the Senate would approve them unless they found something seriously wrong. Just disagreeing with a nominee was generally not enough — to reject him or her you needed to find a scandal of some sort. (That’s the plot of the 1959 Pulitzer-winning political novel Advise and Consent.)

Until recent decades, rejections were rare. In 1968, the Senate filibustered President Johnson’s appointee for Chief Justice, pointing to some questionable speaking fees. (The vote was roughly bipartisan, with 19 Democratic senators voting not to end the filibuster.) In 1989, President Bush’s nomination of John Tower as Secretary of Defense was rejected because of his personal life. (Only one Republican senator voted against him.)

President Reagan and the Democratic Senate both escalated the battle in 1987: Reagan slapped the new Democratic majority in the face by nominating the extreme conservative Robert Bork to the Supreme Court, and the Senate slapped back by rejecting the nomination on ideological grounds, without finding a scandal.

Filibusters on ideological grounds, at least for judicial nominations, became standard during the Clinton and Bush Jr. administrations, but most posts within the executive branch continued to be filled with only minor friction, on the principle that the President should be able to work with people of his own choosing.

Two major non-judicial nominations the Democrats held up during the Bush years were John Bolton as UN ambassador and Steven Bradbury as head of the Justice Department’s Office of Legal Counsel. Bush Jr. used a series of temporary recess appointments to put them in office long-term — clearly not what the Constitution meant that power for. The Senate struck back by holding pro forma sessions — leaving a skeleton crew in Washington to open and close the Senate every week, so that it would not legally be in recess — even though it was in recess in any practical sense.

Since their numbers increased in 2010, the Senate’s Republican minority has escalated again: Nominees are filibustered (or their nominations are simply ignored) not even because of their ideology, but because of general policy issues unrelated to the nominee. Republicans don’t want the NLRB or the Consumer Finance Protection Bureau to function at all. But they don’t have the votes to abolish them, so they refuse to consider nominations for those positions. They have defended that refusal against recess appointments with the same pro-forma-session technique the Democrats used against Bush. (With this added wrinkle: The Senate’s Democratic majority can’t end the session because the Constitution won’t let it as long as the Republican-controlled House is in session.)

Now Obama has re-escalated by refusing to recognize the pro forma sessions and making recess appointments anyway. This, Republicans say, is a “tyrannical abuse of power“.

And it is, in some sense. But without it the Senate minority’s abuse of power stands unchallenged. The Founders never intended any of this.

This is part of a pattern in which all sides are acting in bad faith, and have been for decades. (And it’s not the only example, as I’ll discuss next week. Signing statements are another.) It creates a vicious cycle in which each escalation challenges the other side to either accept a defeat that seems illegitimate or to escalate further. There seems to be no obvious place for this to stop.

Next week: At the end of this road democracy unravels, because democracy depends as much on good faith as on elections and constitutions.

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  • Kim Cooper  On January 9, 2012 at 7:16 pm

    The “wimpiness” that many have criticized on the part of Democrats is often just that “good faith” trying to exist. the Republicons will have none of it — they INSIST on bad faith in government. The People criticize the President for not doing everything they want as if he had the power of a dictator rather than a President, and no one points out to them that he isn’t a dictator. So, all of this will continue to escalate until our president really is a dictator, and the first Republicon to be “elected” dictator will appoint himself for life. I hope we’ll be in Canada by then….
    Do you see a solution to this “slippery slope”?

  • Anon  On January 12, 2012 at 3:51 pm

    “The Founders never intended any of this.”

    Is that the standard now? Think carefully. Whining about filibusters is inversely proportional to the power your side has. “Bad faith” indeed.


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