Senate Majority Leader Harry Reid warned Republicans Thursday that if they use the arrival of Scott Brown as an opportunity to filibuster every Democratic nominee, then his party may have to bypass the legislature and rely on appointments made during recess.
"I hope that we can get more cooperation here. I have been someone, Madam President, who has tried hard not to do -- have the president do recess appointments," Reid said from the Senate well Thursday afternoon. "But what alternative do we have? What alternative do we have?"
Brown of Massachusetts, who will be sworn in later on Thursday afternoon, give the GOP enough votes to filibuster any nominee -- and they've shown a willingness to filibuster any nominee.
That leaves Craig Becker, nominated to the National Labor Relations Board, one of many nominations that could be blocked by filibuster.
A recess appointment is made when the president appoints a job prospect while the Senate is in recess. According to Senate Rule 22, a motion to recess cannot be filibustered
A recess appointee could theoretically serve for nearly two years. A person recess-appointed during the president's day break in February could serve until the end of the next session, which would take the appointee to late 2011.
President Bush made 171 recess appointments and President Clinton made a total of 139 recess appointments, according to the Congressional Research Service. Of President Bush's 171 recess appointments, 99 were to full-time positions, and the remaining 72 were to part-time positions.
UPDATE: Debate about aren't, generally, about process, but about power and the outcome of that process. It didn't take long for a helpful GOP aide to send along quotes from Democrats decrying recess appointments when Bush was the one making them.
SEN. HARRY REID (D-NV): "An End Run Around The Senate And The Constitution." "I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations." (Sen. Reid, Congressional Record, S.15980, 12/19/07)
REID: "They Are Mischievous." Also, understand this: We have had a difficult problem with the President now for some time. We don't let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks." (Sen. Reid, Congressional Record, S.7558, 7/28/08)
SEN. DICK DURBIN (D-IL): "The President Basically Says He's Going To Ignore The Will Of The Senate And Push Someone Through, It Really Is Troubling." "When you have an appointment that is this critical and this sensitive, and the president basically says he's going to ignore the will of the senate and push someone through, it really is troubling." ("Bush Sends Bolton To U.N." The [Springfield, IL] State Journal-Register, 8/2/05)
DURBIN: "Could Easily Be Unconstitutional ... Certainly Confrontational." "I agree with Senator Kennedy that Mr. Pryor's recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution." (Sen. Durbin, Congressional Record, S.6253, 6/9/05)
SEN. RUSS FEINGOLD (D-WI): A "Slap To This Institution." "Judge Pickering was never confirmed by the Senate, but in a further slap to this institution, the President put him on the court through a recess appointment." (Sen. Feingold, Congressional Record, S.13289, 10/24/07)
FEINGOLD: "The Administration Could Put In Place The Most Egregious And Political Leadership, And We--The Senate--Could Do Nothing About It." "Is that what we want? It means most likely there will be recess appointments this winter for the 10 major leadership positions in the Department. And what does that mean? Simply stated: The administration could put in place the most egregious and political leadership, and we--the Senate--could do nothing about it. We would have reduced transparency and reduced congressional oversight." (Sen. Feingold, Congressional Record, S.14158, 11/8/07)
SEN. CHRIS DODD (D-CT): "I Think It Is An Abuse Of The Process, Whether Democrats Or Republicans Use It." "Remember, this is written in the Constitution to provide during these long periods when Congress was not going to be around at all and you had to put people in place. Now what presidents do -- Democrats and Republicans -- is wait for a week or two recess to come along and slip someone in. I think it is an abuse of the process, whether Democrats or Republicans use it." ("Democrats Decry Bolton Appointment," Fox News, 8/01/09)
SEN. FRANK LAUTENBERG (D-NJ): A Recess Appointment "Bends The Rules And Circumvents The Will Of Congress." "'[E]ven while the president preaches democracy around the world, he bends the rules and circumvents the will of Congress' at home. ("President Sends Bolton to U.N.; Bypasses Senate," The New York Times, 8/02/05)
SEN. PAT LEAHY (D-VT): "A Recess Appointment ... Just Angers Everybody When It's Done." "In the years I've been here, there has been ample precedent for this when Congress is going to be out, rather than try to do some kind of a recess appointment, which just angers everybody when it's done without concurrence of both the chairman and the ranking member." (Judiciary Committee, U.S. Senate, Hearing, 2007)
SEN. PATTY MURRAY (D-WA): "People Are Concerned." "With that in mind, Senate Democrats said they have little faith that Bush will play nice and refrain from making the controversial appointments. Democrats have been blindsided by Bush before, particularly in April when the president tapped three controversial nominees for executive branch slots. 'I always worry about it,' said Senate Majority Whip Dick Durbin (D-Ill.). 'I think every time there's a recess, people are concerned that the president might use that' option, echoed Sen. Patty Murray (Wash.), the Democratic Conference secretary." ("Reid Mulls Pro Forma Sessions," Roll Call, 11/15/07)