President Obama on Saturday announced the recess appointment of 15 political appointees whose nominations had been stalled by Republicans.
"The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis," Obama said in a statement.
"Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. At a time of economic emergency, two top appointees to the Department of Treasury have been held up for nearly six months. I simply cannot allow partisan politics to stand in the way of the basic functioning of government."
The 15 newly appointed nominees are:
* Jeffrey Goldstein: Nominee for Under Secretary for Domestic Finance, Department of the Treasury
* Michael F. Mundaca: Nominee for Assistant Secretary for Tax Policy, Department of the Treasury
* Eric L. Hirschhorn: Nominee for Under Secretary of Commerce for Export Administration and head of the Bureau of Industry and Security, Department of Commerce
* Michael Punke: Nominee for Deputy Trade Representative - Geneva, Office of the United States Trade Representative
* Francisco "Frank" J. Sánchez: Nominee for Under Secretary for International Trade, Department of Commerce
* Islam A. Siddiqui: Nominee for Chief Agricultural Negotiator, Office of the U.S. Trade Representative
* Alan D. Bersin: Nominee for Commissioner, U.S. Customs and Border Protection, Department of Homeland Security
* Jill Long Thompson: Nominee for Member, Farm Credit Administration Board
* Rafael Borras: Nominee for Under Secretary for Management , Department of Homeland Security
* Craig Becker: Nominee for Board Member, National Labor Relations Board
* Mark Pearce: Nominee for Board Member, National Labor Relations Board
* Jacqueline A. Berrien: Nominee for Chair of the Equal Employment Opportunity Commission
* Chai R. Feldblum: Nominee for Commissioner, Equal Employment Opportunity Commission
* Victoria A. Lipnic: Nominee for Commissioner, Equal Employment Opportunity Commission
* P. David Lopez: Nominee for General Counsel, Equal Employment Opportunity Commission
In a post to the White House blog that accompanied Obama's announcement, spokeswoman Jen Psaki wrote that the president "was no longer willing to let another month go by with key economic positions unfilled, especially at a time when our country is recovering from the worst economic crisis since the Great Depression."
Article II, Section 2 of the U.S. Constitution gives the president the right to unilaterally fill any vacancy that would normally require Senate confirmation when the Senate is in recess.
Unlike appointments that are confirmed by the Senate, recess appointments only last until the end of the next session of Congress, which right now would mean until the end of 2011.
Obama had been widely expected to recess appoint Becker and Pearce to the labor relations board. As Jason Linkins wrote in the Huffington Post on Friday, GOP opposition to Obama's nominees had left the board with only two of its five members, which has led to a lot of one-to-one ties.
Some of the other appointments are to critical positions, such as the two Treasury candidates whose nominations had been stalled.
And some were being obstructed for particularly outrageous reasons. As Ryan Grim recently reported for the Huffington Post, the two trade nominees -- Bunke and Siddiqui -- were being blocked by Kentucky Republican Sen. Jim Bunning because he is opposed to a tobacco-related law passed by the Canadian Parliament.
Sen. Sheldon Whitehouse (D-R.I.), was particularly eloquent on that matter on the Senate floor two weeks ago: "The Senator from Kentucky has said he doesn't have any objection to these nominees. He's only blocking the nominations as leverage against the President and [U.S. Trade Representative Ron] Kirk. That is pure obstructionism."
Obama nevertheless shied away from what would have been some more controversial recess appointments. He did not unilaterally install any of his blocked nominees to the Justice Department, including Dawn Johnsen, his nominee to run the Office of Legal Counsel, and Chris Schroeder, his nominee to be assistant attorney general for legal policy -- both of whom are beloved by progressives but reviled by Republicans. He also chose not to recess appoint one of his senior Treasury nominees, Lael Brainard, nominated for undersecretary of international affairs, who has run into some tax issues.
That Obama would use his recess appointment powers isn't a surprise. According to the Congressional Research Service, President George W. Bush made 171 recess appointments; President Clinton made 139.
Until Saturday, Obama hadn't made any -- despite Republican obstruction so intense that even Senate Majority Leader Harry Reid in early February essentially begged Obama to do an end run.
"Frankly, I think the President should recess all of them -- all of them," Reid said of Obama's stalled nominees. "There are scores of them being held up for reasons that have nothing to do with anything dealing with these people or how they will function once in office."
There are still about 200 judicial and civilian nominees being held up, some of them for some pretty amazing reasons. And the Senate is in recess until April 12.
Below are five more recess appointments Obama could reasonably make. Vote for your favorite.
Dawn Johnsen is possibly the most celebrated of President Obama’s stalled nominees. Even before his inauguration, Obama announced that he would nominate Johnsen to head the Office of Legal Counsel -- a move that, considering her outspoken opposition to torture and extreme assertions of presidential power, the legal profession correctly interpreted as a clean break from the Bush era. This, however, has rankled Republicans, who have subjected her nomination (and renomination) to unprecedented delays. The Los Angeles Times editorial board wrote last May: “Her most impressive qualification for the position, in addition to her prior service, is a detailed position paper she and 18 other former Office of Legal Counsel lawyers published after the release of the first torture memo. It offers a mirror image of the way the office behaved during the Bush administration: ‘When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the president's constitutional obligation to ensure the legality of executive action.’" The New York Times editorial board wrote in February: “More than a year into his presidency, President Obama’s nominee to lead the Justice Department’s Office of Legal Counsel still has not been confirmed by the Senate. Dawn Johnsen, a law professor at Indiana University, is a highly qualified choice, but Republicans have been raising baseless objections and delaying. They owe Mr. Obama a vote on this nomination, and Democratic leaders have a duty to get it done quickly.” Also see People for the American Way’s Dawn Johnsen resource page.
Christopher H. Schroeder is President Obama’s nominee to be Assistant Attorney General for Legal Policy. He was first nominated in June 2009. The Judiciary Committee approved his nomination the following month, but Republicans ran out the clock until the end of the year. Obama then re-nominated Schroeder on January 20, which was soon followed by another Judiciary Committee approval. Now he’s waiting again. Victor Williams, a law professor at Catholic University, recently blogged for the Huffington Post:Christopher Schroeder exemplifies the dedicated scholar who is also an experienced public servant and practicing attorney. He served as Chief Counsel to Senate Judiciary Committee and as an Acting Assistant Attorney General. Coauthor of the 2009 book Keeping Faith with the Constitution, Schroeder has a unique reverence for our Republic and a deep personal fidelity to its charter. A wide range of former Clinton Administration officials, including former Solicitors General Walter Dellinger and Seth Waxman, strongly support his appointment. But Schroeder's Republican references offer even more glowing praise. Ken Starr, a former Bush Solicitor General, writes of Schroeder's stellar reputation as "a thoughtful and measured person" who exercises "sound judgment." …. Arthur B. Culvahouse - Ronald Reagan's White House Counsel and present Chair of O'Melveny & Myers - offers an even stronger recommendation. Schroeder works as part-time counsel at O'Melveny. His boss praises his "exemplary" work on "highly complex legal matters."
Winslow Sargeant is President Obama’s nominee to be Chief Counsel of the Office of Advocacy for the Small Business Administration. Take it away, Sen. Mary Landrieu(D-La.): This is very troubling to me, as the chair of the Small Business Committee. Months ago now, we had Dr. Winslow Sargeant before our committee. The President nominated him to be the Chief Counsel of the Office of Advocacy for the Small Business Administration. For my colleagues who may not be aware of this office and how important it is to have a qualified individual leading it, let me say that the Office of Advocacy works to reduce the burdens of Federal policies and regulations on small business, which is an important effort that is undertaken when either Republicans or Democrats are in the majority. We recognize that sometimes regulations, particularly overly burdensome regulations, can be difficult for small business, so this position in the Small Business Administration was actually created to advocate not on behalf of the regulations, not on behalf of the government, but on behalf of the small businesses--the millions of them that are out there struggling right now to create jobs. We want to be helpful to them, not hurtful. So it is puzzling to me why this nomination is being held up, particularly because he passed out of our committee with bipartisan support…. Why -- why -- would anyone want to hold up this position? But someone is, and we are going to find out who and why.”
President Obama first nominated Mary L. Smith to be the Assistant Attorney General for the Tax Division in April 2009. The Judiciary Committee has now approved her twice, but she’s still waiting for a full Senate vote. Sen. Tom Coburn (R-Okla.) has called Smith the worst appointment Obama has made during his presidency. The Legal Times wrote last year that the Justice Department took umbrage: "It is true that she is not a traditional tax lawyer or a tax specialist," the department's statement reads in part. "However, Smith has extensive experience in financial litigation, both for and against the government." The statement continues: "The Tax Division is not a policymaking entity — it enforces the federal tax laws and defends the United States when it is sued by taxpayers seeking refunds for taxes that have been paid. For this reason, the Assistant Attorney General for the Tax Division needs first and foremost to be a person with significant litigation experience, preferably experience in tax, corporate or financial litigation." Smith is a partner with Schoeman Updike Kaufman & Scharf in Chicago. She worked on Obama's Justice Department transition team, focusing on tax issues among other areas, the statement notes. She's spent time in the department's Civil Division, at Skadden, Arps, Slate, Meagher & Flom, and at Tyco International. She was an associate White House counsel from 2000 to 2001, when she was the highest-ranking American Indian in the Clinton administration.
Jim Esquea is President Obama’s nominee to be the Department of Health and Human Service’s Assistant Secretary for Legislation. So he would be a key player in implementing the health care bill. But as the Washington Independent reported, Republicans are blocking all of Obama’s pending HHS nominations. The reason: The White House, during the health care debate, prohibited private insurers from lobbying their customers.The administration’s so-called “gag order” arrived after Humana, the insurance giant, sent letters to enrollees in its Medicare Advantage plans warning them that the Democrats’ health reforms would force “millions of seniors and disabled individuals” to lose “important benefits and services.” The letter urged seniors to get in touch with their lawmakers opposing the bill, which would cut MA subsidies by $117 billion over 10 years. The order prohibiting such notices riled Senate GOP leaders, who said the move violated First Amendment rights. Although MA sponsors are contractually bound to have HHS review such communications to seniors regarding their plans, Sen. Jim Bunning (R-Ky.) said last month that the First Amendment “absolutely” takes precedent over contract agreements. GOP leaders have vowed to delay all HHS nominations until the gag order is repealed.