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The Case for Recess Appointing Bernanke

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Barack Obama should announce plans to recess appoint Ben Bernanke as Fed Chair while the Senate debates whether to hold a timely confirmation vote. The bold act would reassure world financial markets that Bernanke will keep his job, and signal to the Senate that the president is ready to fight the continuing confirmation obstruction against Bernanke and other of his nominees.

Warren Buffett is right (again); Bernanke has done a "stellar job." Bernanke helped save the nation from a catastrophic financial collapse and forestalled a debilitating depression. Rationally exuberant, Alan Greenspan (himself recess appointed as Fed Chair in 1991 while awaiting confirmation) put it best: "Ben Bernanke is far and away the best person to lead the Fed going forward. He should be reconfirmed as soon as possible."

Time Magazine's 2009 Person of the Year analysis fully argues the case for the Fed Chair. When the economic crisis was at its worst, Bernanke did his best. His economic interventions were bold and decisive. Now, time is again of the essence -- Bernanke loses the chair's position on January 31, 2010.

A recess appointment commitment is needed. Obama can not allow the Senate's startle response to Scott Brown's pick-up populism to run the Bernanke appointment and the economy into the ditch.

Five months ago, President Obama interrupted his Martha's Vineyard vacation to announce that Bernanke would keep working as Fed Chair. Obama rightfully credited the Great Depression scholar with helping to prevent another. The President praised "his background, his temperament, his courage, and his creativity."

After the Senate Banking Committee fully explored the many Bernanke successes and more than a few missteps, it approved the nomination for a floor vote. Procedural holds were being placed against the nomination, stalling the floor vote. Like its procedural cousin the filibuster, even the threat of a hold requires a 60-vote cloture remedy.

Bernanke is not a lone victim of contemporary Senate confirmation obstruction. Scores of nominees await Senate action; 300 federal vacancies exist across executive, regulatory, and judicial offices. President Obama has dutifully kept the Senate confirmation queue filled with exceptionally well qualified nominees. He makes historic progress with his diverse selections; picking a record number of Hispanics for top posts.

However, the cycle of Senate confirmation obstruction, which has worsened during each of the past four presidencies, spun out of control in 2009. Senate slow-walking strategies were standardized; individual holds became the delay tactic of choice. 100 judgeships are now vacant; one-sixth of the federal judiciary.

The true danger of a seriously understaffed federal government has yet to be fully realized; partially because the administrative state struggles daily to accommodate a laggard Senate. Consider the three nominations to the five-member U.S. Nuclear Regulatory Commission which have been pending for months. To avoid the Commission's loss of quorum, the NRC's third vacancy was offered by Commissioner Dale Klein effective upon "my successor taking office." If an independent agency - so important to the nation's energy and security future as the NRC - has five members by its authorizing statute, why are we content to allow it to get by with only three; with one commissioner having resigned conditionally.

Consider also the five-member National Labor Relations Board which has been hobbled with three vacancies since 2008. The Board's two remaining members have continued to govern for the past two years, issuing over 450 opinions. After the D.C. Circuit Court ruled in late 2009, that the "rump panel" lacked legal authority, the U.S. Supreme Court agreed to review the legality of a two person NLRB continuing to govern. The Senate has refused to act on Obama's three NLRB nominees due to Sen. John McCain hold on Chari nominee Craig Becker.

McCain says of Becker that he will " do anything I can to block his nomination." But John McCain is the man who wanted Sarah Palin to be a heartbeat away from exercising Article II, Section 2 appointment authority. McCain does not get to choose either the NLRB or the Federal Reserve Chair. Election results matter, ask Scott Brown. McCain does retain one vote: An up-or-down confirmation vote.

McCain and every other Senate Republican have replaced their Bush-era faith in the up-or-down floor vote with a fundamentalist passion for confirmation delay, including the use of filibusters. The obstruction of Ben Bernanke nomination is somewhat unique by its "transpartisan" nature as a range of senator seek to be "more populist than thou."

All the more reason for Obama to face down Senate opponents. Of course, Barack Obama knows how to fight; politics in Chicago is extreme hardball; he beat Hillary Clinton and McCain for his current job. But Senate confirmation fights are more like dealing with bullies' harassment in a low-grade boarding school hallway than old-school, electoral politics.

The early advice for Obama to "move beyond the confirmation wars" was unfortunate. It was like taping a "kick me" sign on his nominees' backs as they walk the Senate halls looking for 60 cloture votes. The response to a Senate hallway bully's "hold" can never be to capitulate by giving up lunch money, fiscal pork, ideological positions, or other provincial concessions.

Instead, Obama must lean on his tough mate who knows the hallway rules. For 36 years, "Fighting Joe" Biden walked the Senate halls. Now it is time for Joseph Robinette Biden to embrace his inner-LBJ.

As Vice President for young John Kennedy, Lyndon Johnson was his most helpful when back in his old Senate -- giving "the treatment" to friend and foe alike. Biden's new priority job must be as Uber-whip to guarantee confirmation cloture votes.

Biden, as President of the Senate, must also lay plans to revive the 2005 GOP's "nuclear option" (a/k/a the "constitutional option") to rein in the filibuster -- so as to allow a simple majority confirmation vote.

While the Administration should respect congressional leadership, the two political branches remain independent. Harry Reid has his job; Obama has a separate Article II responsibility to assertively fill government jobs by all constitutional means.

Our founders provided the ultimate means in Clause 3 of Article II, Section 2: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." In Federalist No. 67, Hamilton explained that the "auxiliary method of appointment" was required for vacancies "which it might be necessary for the public service to fill without delay."

Beginning with George Washington, recess commissions have been used by presidents throughout the republic's history to keep the government fully staffed. History records each great president making hundreds of such appointments. All successful presidents have made hundreds of recess appointments. In one bold en masse signing, Theodore Roosevelt recess commissioned 160 officials in a Senate break lasting less than one hour.

A recent appellate court ruling affirmed the President's unilateral authority to make valid appointments even during short intra-session adjournments. While Obama and Biden press hard for a traditional Senate confirmation, a promise for a recess commission for Ben Bernanke is needed.

Obama would simply initial the commission, and ensure Ben Bernanke stays at work. Under the famed TR portrait in the White House's Roosevelt Room, President Obama should sign a few score more recess commissions to fill other important national government positions.

A February 2010, recess appointment would last until the end of the Senate's next session -- late 2011. A traditional appointment with Senate consent can proceed concurrently during that time of service; or a re-recess can follow the initial commission's expiration. Bully, indeed.

Victor Williams is a clinical assistant professor at Catholic University of America School of Law and an attorney in Washington, D.C.; Nicola Sanchez is an attorney with the U.S. Nuclear Regulatory Commission. The views expressed are the authors' alone and do not reflect those of CUA, the NRC or the federal government.