Tangling Over Recess Appointments: What’s at Stake?

The move by Senate Majority Leader Harry Reid of Nevada to prevent President George W. Bush from making recess appointments over the Thanksgiving break lays bare the distrust and frustration that extend up and down Pennsylvania Avenue. The immediate clash is over contentious presidential appointees opposed by Democrats in the Senate. The larger conflict reflects the deep disputes over policy and process that prevails between a Democratic-led Congress and a Republican White House.

Even a short recess constitutionally empowers the president to make recess appointments—temporary appointments that last until the close of the following session of Congress. By declaring that the Senate would go periodically into pro forma session every fourth day over the course of the holiday break, Senator Reid foreclosed the president’s ability to make recess appointments to the executive and judicial branches.

Historically, recess appointments provided a means for the president to fill important vacancies without waiting until the Senate returned. In earlier periods, when the Senate would be out of session for months rather than weeks, the authority to make recess appointments was rarely challenged. Such appointees would typically be officially nominated when Congress came back into session, thereby allowing the Senate to consider the nominee. Confirmation usually followed.

Recently, critics of President Bush have charged that the president has exploited the power by using recess appointments to circumvent the Senate’s role in dispensing advice and consent. Critics note that some recess appointments seem intended to secure appointments for nominees deemed un-confirmable by a Democratic-led Senate. The president, for example, gave a recess appointment this past April to Sam Fox to be ambassador to Belgium; Fox was the financial backer of Swift Boat Veterans for Truth, and as such was unlikely to have secured confirmation by the Senate. Other controversial nominees receiving recess appointments include John Bolton, whose recess appointment to be U.S. Representative to the United Nations in 2005 came after Senate Democrats filibustered the effort to bring Bolton’s nomination up for a confirmation vote.

Not all of President Bush’s recess appointments, however, have been controversial. Of the 165 cases over the past seven years for which the president submitted a nomination after making the recess appointment, the Senate has confirmed 91. For four of these seven years, however, the Senate was led by the Republican party, making it easier for the president to secure confirmation for his appointees.

On the flip side, almost one-third of Bush’s 165 nominees failed to be subsequently confirmed by the Senate, and roughly 15 percent are still pending before the Senate in the current Congress. Given that presidents typically enjoy a very high confirmation rate for most executive branch appointments, the high failure rate over the course of the Bush administration for these re-nominated appointees suggests that the president’s critics may indeed be correct: President Bush’s aggressive use of the recess appointment power may be undermining traditional checks and balances that would otherwise be exercised by the Senate through its practice of advice and consent.

More is at stake here than the question of whether the president has overstepped Constitutional bounds in exercising his power to make recess appointments. Equally, if not more troubling, is the degree of stalemate and distrust that pervades relations between a Democratic-led Congress and Republican White House. In this particular instance, Senator Reid had attempted to strike a bargain with the White House over the nominations impasse. Democrats would have committed to moving numerous nominations through the confirmation process, if the administration committed to submitting Democratic picks for certain executive branch positions reserved by law for Democratic-nominations.

Senator Reid made his move to keep the Senate in pro forma session after the president refused to bargain and indicated his intention to make several recess appointments over the Thanksgiving break,. Although the Senate and the White House had succeeded in negotiating a similar agreement before the August recess, no such willingness to trust the other side emerged this time around.

The mutual distrust between the branches comes amid legislative stalemate over numerous big issues on the national agenda. Standoffs over vetoes of a children’s health insurance bill, a water development bill, and a key spending bill for the fiscal year that started nearly two months ago reflect long-standing policy differences between Democrats and Republicans. The standoff also underscores the lack of political incentives to move to the center to reach compromise. Brewing fights over the president’s request for supplemental spending to fight wars in Iraq and Afghanistan, as well as over the other federal spending bills that have yet to be sent to the president, do not bode well for relations across the branches as the nation gears up for next November’s elections.

Entering an election year, neither party seems inclined to put aside political differences to negotiate even small differences in spending or policy details. The fate of nominees to executive and judicial branches hangs in the balance, as presidential election years are rarely propitious times to secure confirmation. This particular standoff has been over executive branch appointments, but the consequences for judicial nominations are even direr.

The opposition party’s incentive to keep lifetime judgeships vacant for a new president of their own is just too powerful in an election year to encourage both parties to move nominees through the confirmation process. Compounded by the deep distrust that pervades relations between the parties, such gridlock over advice and consent does not bode well for securing compromise over major policy problems that linger on the nation’s agenda.