We know, after the non-performance of the Senate these past two years, that we do not have to wait for Republican dominance in Congress to see gridlock. It is not all due to Republicans’ calculated recalcitrance, however. The Senate just adjourned with major business left undone, but it did finally confirm 54 of President Obama’s nominees, including two of his three nominees for the Federal Reserve. As Ezra Klein pointed out on Thursday in The Washington Post, the rather miraculous approval came at a price exacted by Mitch McConnell, (R-KY) Senate Minority Leader. The price: the Senate will not be fully in recess; it will be “kept in pro forma sessions” over the next 6 weeks so that the President cannot make “recess appointments,” thus by-passing the requirement for Senate confirmation.
Specifically, this will leave the Office of Management and Budget without a Director just as the government begins working on the 2012 budget, because President Obama is now unable to make a recess appointment of Jack Lew as Director. Why is Jack Lew languishing in limbo? Because Senator Mary Landrieu (D-LA) put a “hold” on his nomination, i.e., the Senator exercised senatorial privilege and refused to allow Mr. Lew’s appointment to be processed by the Senate. Landrieu says frankly that her hold has nothing to do with Lew’s qualifications, that, in fact, he “clearly possesses the expertise necessary,” in other words, Mr. Lew is well qualified and should be approved, but “… her hold is about the White House’s moratorium on offshore drilling.” One is tempted to say, With friends like these, who needs enemies?
The frustrating outcome of these maneuvers, Ezra Klein predicts, will be
“a new norm emerging. Now that McDonnell has discovered a way to leverage his power over noncontroversial appointees to impede the president’s ability to make recess appointment, there’s little doubt that he’ll use it again, or that the Democrats will use it when the Republicans are in control. And so the already broken process for nominations becomes that much more broken.”
This of course is one more assault on the Constitution, final paragraph in Article II, Section 2:
“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.”
One wonders: if President Obama had not chosen to appoint Elizabeth Warren to a Commission to set up the Consumer Protection Agency, would McConnell have come up with this trick to game the system? The answer, unfortunately, is probably Yes, he would, given the hatred his Big Business masters have for everything Obama. For the rest of us, it is one more sign that Congress, and especially the Senate, desperately needs to change its rules and return to its role in helping to govern the country. The opportunity to do so comes with a new Congress convening in January, when only 51 votes are needed to set the rule of engagement. Don’t hold your breath.