WASHINGTON — As Congress breaks next week for its spring recess, President Barack Obama has an opportunity to turn to a divisive tool to push through his stalled nominees: the recess appointment.
It's never a president's preference, and the political fallout can be nasty, but presidents tend to use this power eventually. They do so either to install someone too controversial to overcome a Senate filibuster, or to fill key spots being held up for unrelated reasons by senators who are trying to secure local projects or use the nominee as leverage in an ideological fight.
Republican President George W. Bush bypassed the Senate confirmation process this way at least 171 times, the Congressional Research Service found. President Bill Clinton, a Democrat, did it 139 times.
In 2005 when he was a senator, Obama criticized Bush's recess appointment of John Bolton as U.S. ambassador to the United Nations. Last month, however, Obama indicated that he'd consider his own recess appointments for critical jobs where he felt noncontroversial nominees were being help up.
As of Thursday, White House aides said 558 judicial and civilian nominees had been confirmed, but another 208 are pending before the Senate. Of those, 73 have cleared the committee process but await a final vote.
The power for recess appointments derives from Article II, Section 2, clause 3 of the Constitution, which provides for continuity of government when the Senate isn't in session. Recess appointments are in effect only through the end of the Senate's next session. A recess appointee now could stay on the job only through late December 2012, unless the Senate confirms him or her in the meantime.
The White House isn't saying if the president will make recess appointments over the coming break — or whom he might appoint.
Senate Republicans anticipate that he's preparing to make at least one — a spot on the National Labor Relations Board.
The Senate Republican caucus wrote Obama a letter Thursday asking him not to name labor official Craig Becker to the board. The letter came after some Democrats close to the administration predicted it would happen, but also after Chief Justice John G. Roberts, a Republican nominee, questioned why Obama hadn't yet used his recess powers to fill the five-member board, which, with three vacancies, hasn't been able to function.
Becker's nomination failed last month on a cloture vote. Republicans say Becker's record suggests he wouldn't be impartial, and that because of his legal work for an international union and major union federation he'd often have to recuse himself. They also said that using a recess appointment for someone who'd been rejected by the Senate would set an "unfortunate precedent. To do so would disregard the Senate's constitutional responsibility of advice and consent."
Paul C. Light, a professor of public service and a governance expert at New York University, said it is "somewhat of a surprise that Obama has waited this long, especially given the frequent use of Senate personal-prerogative holds to delay confirmations. He's right to be frustrated by it all, and government is suffering from the lack of movement on key posts."
At the same time, Light said, recess appointments constrain both the president and the nominee and should be "a last resort."
Several Republican lawmakers said Thursday that they hope Obama won't make recess appointments, especially on controversial nominees.
"When they submit people whose background and stated philosophy many of us believe might place the country at risk, we have every right to be able to debate and vote on that," said Sen. Jeff Sessions, R-Ala.
However, Sen. Claire McCaskill, D-Mo., said that if Republicans hold up qualified nominees, "I don't think the president has much of a choice but to begin to look at that process. His government needs to function, and if the idea here is that you obstruct to the point that you try to make him fail, I think that he's got to use whatever process available to run the government."
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