The White House did not consider using a recess appointment to circumvent the Senate and get its nominee for the Office of Legal Counsel into the post, despite the fact that few other avenues seem available to secure the confirmation.
The administration announced on Thursday afternoon that it would be re-submitting Dawn Johnsen's nomination for the head of OLC -- roughly a year after she was first nominated. The decision was hailed by progressive activists, many of whom were heartened by Johnsen's criticism of Bush-administration OLC officials who helped author the infamous torture memos.
But re-nomination is only the first step. At this juncture, Johnsen still faces the same institutional hurdles on the path to confirmation -- mainly, securing the 60 votes needed to cut off a Republican-led filibuster.
In light of this challenge, there was some talk that Obama should give Johnsen a recess appointment, which would eliminate the need for Senate confirmation but mean that her term could only last one year.
"Obama must exploit the broad utility of the alternative process, notwithstanding his immediate predecessors' use of the power for commissioning controversial officials," wrote Victor Williams of Catholic University School of Law, and Nicola Sanchez, an attorney with the U.S. Nuclear Regulatory Commission.
The president, however, didn't consider going down this route. "Not that I'm aware of, no," Press Secretary Robert Gibbs said on Friday, in response to a question from the Huffington Post. Asked how the administration planned to secure the votes that Johnsen couldn't get on the first go-round, Gibbs talked more about the president's broad complaints with congressional processes than specific confirmation strategies.
"Well, as we've talked about in here, obviously I think one of the things that the president and the administration would like to see is a change in the pacing of nominations in general being addressed by the Senate. We have seen over the course of many months I think a very intentional slowdown of the work that the Senate does, which I don't think serves anybody in any political party well. Obviously the president and the team will continue to work with the Senate to get to the 60 votes that would be needed for Ms. Johnsen to pass the Senate."