The Politico reports:
Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.
But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.
Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? . . .
While Obama has so far shied away from using recess appointments, the Constitution gives presidents the power to install appointees to vacant positions when the Senate is on a recess.
Such appointments last only until the beginning of a new session of the Senate, meaning any Obama recess appointment would hold their posts until next year — when Republicans are likely to have more seats in the chamber.
Bush made 179 recess appointments, and President Bill Clinton made 139, according to the nonpartisan Congressional Research ServiceSen.
Reid’s change of heart appears motivated, in part, by Senator Richard Shelby’s blanket hold on some 70 pending nominees. Yet as Politico also reports, Sen. Reid imposed a blanket hold of his own in 2004 to get a federal appointment one of his advisors.
The Constitution authorizes recess appointments, even if modern use of the power is more expansive than the Constitution may have contemplated. As I see it, recess appointments are an appropriate response to the Senate’s persistent refusal to confirm nominees with strong majority support, particularly if that support is bipartisan. As a practical matter, recess appointments risk political backlash, particularly if they are overused. In this regard it is notable that President Bush made only four recess appointments after Democrats retook the Senate in 2006, after having made 175 during his first six years.
UPDATE: The NYT reports Senator Shelby has lifted his holds on all but three nominees whose positions are related to the Defense projects he’s seeking to advance.
Arkady says:
Just another data point in confirmation of Orin’s Law:
February 9, 2010, 6:42 ampublic_defender says:
In the end, it’s all about power. Blanket holds over earmarks are never going to work long term. More narrow holds over matters of policy that the public supports can work.
February 9, 2010, 8:10 amPeteP says:
And yet Reid was perfectly happy to strip President Bush of his Constitutional right to make recess appointments by the artifice of pro forma sessions every 3 days during breaks.
His flip-flop now suprises ….who ?
February 9, 2010, 9:45 amTCO says:
What the hell is a hold and how does a random minority party Senator enact it?
February 9, 2010, 9:52 amPer Son says:
When did Republicans start to favor the filibuster?
February 9, 2010, 10:17 amDave N. says:
Per Son,
I suespect when Democrats started using them wholesale during the preceding Administration.
(I oppose filibusters for executive appointments, including judges, regardless of which party is in power)
February 9, 2010, 10:22 amzuch says:
Arkady has it nailed.
Prof. Adler:
“Reid’s Reversal on Recess Appointments”
When can we expect a similar post on Republican reversals on recess appointments, “up-or-down” votes, filibusters, etc.?
Cheers,
February 9, 2010, 10:32 amDave N. says:
zuch,
Ah yes, the “But, but, they did it too” defense. I don’t find it convincing when used by kindergarteners, let alone adults.
If a person has made a point of making a statement on an issue (as Senator Reid did) and changes his position when the political winds change (as Senator Reid did), then he is certainly open to criticism.
If you want to point to specific statements by specific Republicans that show a shift in position between what they said during the Bush Administration and what they say now, be my guest.
February 9, 2010, 10:40 amPer Son says:
Dave N:
I understand your post. The issue however, is that both sides are so holier-than-thou and then flip. I’d like to hear Reid and the filibusterers speak openly about their situational ethics.
February 9, 2010, 10:44 amShelbyC says:
What does that have to do with the issue at hand? Even assuming JA didn’t make any such posts (a rather uncharitable assumption you seem to be making), what does that have to do with Reid’s reversal?
February 9, 2010, 11:31 ambyomtov says:
what does that have to do with Reid’s reversal?
It has nothing to do with Reid’s reversal and everything to do with Adler’s criticism. Why single out Reid? The GOP was yelling about “up-and-down votes” and “constitutional options” and so on when the Democrats were filibustering some of Bush’s picks.
I think compaining about just one person, or one party, being inconsistent on these matters is pretty inconsistent itself.
[RESPONSE: byomtov - Did you miss my post criticizing Senator Shelby's use of a blanket hold? It's linked in the post above. I also don't recall Republicans ever playing games with the Senate calendar so as to preclude recess appointments, but I'm happy to be corrected on this latter point. JHA]
February 9, 2010, 11:45 amJonathan H. Adler says:
Per Son –
Senator Sessions explained his newfound support of filibustering select judicial nominations in this Washington Post op-ed. In it he states he would support a deal to end all filibusters of judicial nominees.
JHA
February 9, 2010, 11:55 amTatil says:
How can Senate allow just one member to stop Senate business? This sounds highly undemocratic. Even filibusters should go. Senate representation afford a large amount of power to states with very small populations already, filibusters make it even worse. It leads to way too much horse trading, special earmarks and tax breaks. Back to “only” 51 votes for legislation.
February 9, 2010, 12:02 pmzuch says:
Where did I do that? I explicitly cited Arkady’s comment approvingly:
Can I be any clearer? Or perhaps you didn’t catch on to Arkady’s point….
Cheers,
February 9, 2010, 12:17 pmbyomtov says:
JHA,
Did you miss my post criticizing Senator Shelby’s use of a blanket hold? It’s linked in the post above. I also don’t recall Republicans ever playing games with the Senate calendar so as to preclude recess appointments, but I’m happy to be corrected on this latter point. JHA]
No. I saw it. It actually doesn’t say anything about reversal of positions. As to playing games with the calendar, well that was really irrelevant during the Bush Administration, wasn’t it?
And surely you do recall all the GOP wailing I referred to about Democratic filibusters during the Bush years? Can you show me where you’ve pointed out those inconsistencies and reversals?
[RESPONSE: Certainly the GOP could have played games with the calendar to prevent recess appointments by Clinton. I am not aware they did so. I've had numerous posts on the GOP and filibusters (incl. here and here) and I noted Senator Sessions' changed position in the comment thread above and in another post earlier today. JHA]
February 9, 2010, 12:18 pmSuperSkeptic says:
How is there that much more “horse trading” “special earmarks” and “tax breaks” between 51 and 60 votes? Seems to me, if there is actually any more of these things, it’s marginal and the real problem is HT, SE, and TB to get 51.
February 9, 2010, 12:30 pmDave H says:
“How can Senate allow just one member to stop Senate business? This sounds highly undemocratic.” The Senate is not designed to be democratic. The disproportional seating of senators (2 from each state, whether Calif. or Alaska – or Virginia and Georgia, for you originalists) and procedural devices such as the filibuster ought to have given that away, if you’ve been paying attention. In fact, the Senate was designed PRECISELY to put a check on the democratic impulses of the House. Learn history and civics.
Anybody who starts collecting quotes from Democrats and liberal commentators about the filibuster now will be able to write a great article in three years (or maybe even next year) about expedient flip-flops.
February 9, 2010, 12:49 pmDave N. says:
zuch,
I apologize if I misread your point. But my challenge remains, point to specific examples of Republican hypocrisy (different standards for President Bush versus President Obama) and we can talk about it.
Or, wait until 2013 (or 2017) and you can call Professor Adler out for not making similar criticisms with the Republicans back in power.
February 9, 2010, 1:42 pmMark Field says:
You’re mixing 2 separate and distinct issues here.
In any representative government, the system works on 2 levels. One is the level where the representatives are selected. On this level, you’re right that the Senate was constructed as an undemocratic body.
On the second level, though, you’re wrong. It’s clear that the Founders expected the Senate to govern itself by majority rule. That’s what Parliament did, it’s what all the state legislatures did, it’s why the VP gets a tiebreaking vote, etc.
February 9, 2010, 3:34 pmbyomtov says:
Jonathan,
Yes. You’ve made clear your opposition to filibusters of judicial nominees, regardless of which party is doing it. You are indeed consistent and principled on this point.
But I don’t see anywhere in your linked posts a criticism of GOP reversals on these issues. The point of my comment was I thought it unfair to single out Reid for reversals and ignore lots of others. I guess we disagree on that, or perhaps on whether you are indeed guilty of selective criticism. Regardless, it’s not earth-shattering.
February 9, 2010, 3:41 pmbyomtov says:
Dave N.,
If you want to point to specific statements by specific Republicans that show a shift in position between what they said during the Bush Administration and what they say now, be my guest.
Well, here’s a start. Bill Frist, then Majority Leader, on judicial filibusters:
Tonight I want to share with you my thoughts about the filibuster of judicial nominees: it is radical; it is dangerous; and it must be overcome….
But the Minority’s filibuster prevents the Senate from giving “advice and consent.” They deny the Senate the right to carry out its Constitutional duty.
This diminishes the role of the Senate as envisioned by the Framers. It silences the American people and the voices of their elected representatives.
And that is wrong.
This filibuster is nothing less than a formula for tyranny by the minority.
Now, I guess Frist isn’t discussing this today, but how many Republicans actually disagreed with him then?
February 9, 2010, 3:50 pmDave N. says:
Byomotov,
Really? When did Senator Frist take a contrary position? It’s my understanding he isn’t even in the Senate anymore. If he was leading filibusters as Senate Majority Leader NOW after saying that then, you would have a valid example.
My point is not that Republicans opposed judicial filibusters, my point is Senator Reid’s hypocrisy — saying different things then and now.
So point to specific Republicans who publicly talked out of both sides of their mouths. That’s what I ask. Since it is a major Democratic talking point, finding examples shouldn’t be too hard.
February 9, 2010, 4:35 pmcboldt says:
– When did Senator Frist take a contrary position? –
February 9, 2010, 8:09 pmHe paid lip service to “every nominee deserves an up or down vote,” by not calling for up or down votes on several nominees who had been voted out of committee. As majority leader, he had the power to call for executive session and get the votes completed on Haynes, Myers and Boyle.
That said, it’s my opinion that no majority leader can hold a candle to Reid’s mendacity. He’s the hands down champion.
byomtov says:
Dave N.,
Really? When did Senator Frist take a contrary position? It’s my understanding he isn’t even in the Senate anymore. If he was leading filibusters as Senate Majority Leader NOW after saying that then, you would have a valid example.
Don’t treat me like an idiot, and don’t make a fool of yourself. The statements Frist made were the standard Republican party line at the time. That was what they said on talk shows, in public statements, etc. Many of the same people are in the Senate today. You damn well know that, so cut the BS. It does you no credit.
If you disagree, maybe you can show me examples of Republicans from 2004 who were saying things like, “The Democrats have a perfect right to filibuster these nominees.” It was a controversial issue after all. Surely if Frist wasn’t expressing the party line it would be easy to find Republicans who disagreed.
February 9, 2010, 9:50 pmbyomtov says:
Dave N.,
BTW, courtesy of Jonathan, here’s Jeff Sessions on filibusters just a few years ago:
… our Democratic colleagues have decided to change the ground rules on confirmation. They have said so and done so openly, and seem to be little concerned that the Constitution may be violated in the process….I think the American people are getting engaged, and they are telling us ‘‘we are tired of obstructionism,’’ ‘‘we are tired of delays,’’ and ‘‘we believe these nominees deserve an up-and-down vote.’’ I could not agree more.
I don’t think he’s voting for cloture these days.
February 9, 2010, 10:02 pmJonathan H. Adler says:
byomtov –
Some Republicans argued filibusters of judicial nominations were always inappropriate, others simply argued they were inappropriate given the qualifications of the nominees at issue. This same division was found within the conservative movement generally. Indeed, the various writers at NRO split on this point — and have remained consistent. Ramesh Ponnuru, for instance, argued that Republicans should not take the filibuster off the table precisely because there would one day be a Democrat nominating judges.
As for Jeff Sessions, as I note in my other post, in this article from November he makes very clear that he is only willing to consider the filibuster of some of President Obama’s nominees because that is the standard set by Senate Democrats and that he is unwilling to engage in “unilateral disarmament.” This is not my position, but it’s hardly unprincipled or hypocritical. Further, while Frist has stated his willingness to use the filibuster against Obama’s judicial nominees, he has only voted against cloture for one of Obama’s appellate nominees (David Hamilton) — and has only voted against confirmation of three. This hardly makes him a poster child of inconsistency or hypocrisy.
JHA
February 9, 2010, 10:47 pmMark Field says:
A quick google shows that Sessions favored the nuclear option.
It’s a little hard to find evidence of Republican filibusters under Clinton because they were the majority party for most of his terms and thus didn’t need to filibuster. Similarly, Sessions would have had no need to filibuster judges nominated by Reagan or Bush I. There is only a 2 year period in which the issue could have come up during his time in the Senate.
Absent evidence that Sessions opposed filibusters in 93-94, I’ll take his support of the nuclear option as evidence of his hypocrisy on this issue.
February 9, 2010, 11:26 pmcboldt says:
– It’s a little hard to find evidence of Republican filibusters under Clinton because
February 10, 2010, 7:06 amthey were the majority party for most of his terms and thus didn’t need to filibuster. –
I think it’s worth expanding on this point a little bit. A member of the majority party can also engage in obstruction via objection, although I can’t think of an example off the top on my head. Just the same, Republicans are charge with blocking Clinton’s nominees. Senator Leahy has made numerous floor speeches leveling the charge of “pocket vetos,” typically referring to nominees being held up in committee. Long story short, the majority holds up nominees bu slow walking, foot dragging, and other forms of inaction. Senator Frist did this with several of GWB’s nominees as well – out of committee for months, but never a motion to enter executive session to consider the nomination.
cboldt says:
– … examples of Republicans from 2004 who were
February 10, 2010, 7:12 amsaying things like, “The Democrats have a perfect right to filibuster these nominees.” –
It’s not from 2004, and it isn’t in terms as concrete as you propose, but see Part Ib of the May 23, 2005 Memorandum of Understanding promulgated by the Gang of 14.
Jonathan H. Adler says:
Mr. Field –
I’m confused. Senator Sessions supported the nuclear option because he wants to eliminate the filibuster of judicial nominations then, and he still wants to eliminate the filibuster of judicial nominations now. His position is essentially the same. He is simply unwilling to forswear using a procedural tactic so long as it is used by his opposition. In short, there’s nothing hypocritical about saying “I don’t believe any of us should do X, so I’ll agree not to do X if you don’t.”
JHA
February 10, 2010, 9:21 amWednesday Highlights | Pseudo-Polymath says:
[...] It’s interesting when democrats accuse the GOP of hypocrisy. [...]
February 10, 2010, 9:29 amMark Field says:
That’s one possible explanation for his behavior, and perhaps I should adopt it out of charity. But the nuclear option was more than just a way to eliminate the filibuster for everyone, it was an in-your-face bitch slap to the Democrats.
I oppose the filibuster too. I’d like to see it abolished for all purposes, though the one use it has which might be justified is, in fact, judicial nominations (because of the lifetime appointment). Even then it should be limited such that the filibuster must be supported by Senators representing at least 50% or more of the nation’s population.
By threatening to remove the filibuster solely for the one purpose it actually has some benefit for, Sessions was not, IMO, seriously proposing mutual disarmament, he was trying to bludgeon his opponents. He gets no charity from me.
February 10, 2010, 10:36 amDoofus « Internet Scofflaw says:
[...] UPDATE: Shelby has now lifted most of his holds. (Via Volokh.) [...]
February 10, 2010, 12:20 pmJonathan H. Adler says:
I still don’t get it. Sen. Sessions apparently believes (like many others) that filibusters are particularly inappropriate for nominations, even to courts, and are more objectionable there than in the case of legislation. You may disagree with this view, but that hardly makes Sessions hypocritical, particularly since all of his behavior has been entirely consistent with his stated position. I also don’t see how trying to force a rule change that he believes in is hypocritical either. It may be unwise, unfair or many other things, but it’s not “evidence of his hypocrisy.”
[I would also note that your suggestion that a filibuster only be permissible if a certain percentage of the population is represented would be unconstitutional, as it would make the votes of some Senators greater than that of others. The lack of proportional representation may be an unwelcome feature of the Constitution, but it is an essential feature as well.]
JHA
February 10, 2010, 12:45 pmMark Field says:
Sessions has taken 2 different positions:
1. That the Republicans should have eliminated the filibuster when the Democrats were doing it.
2. That he would be willing to abolish the filibuster for judicial nominees if the Democrats agree to it, but otherwise he’ll use it.
One way to look at this is that he’s inconsistent: he continues to use a practice which, he believes, should be abolished.
Another way to look at it is to say he’s consistent, in that he wants to abolish it, but feels he must use it as long as it’s a rule.
I’m trying to decide which of these better describes Sessions. IMO it’s the former. I say this because his support of the nuclear option was not an abstract, “let’s work together and abolish this bad rule by mutual agreement” attitude (which he offers now), it was a “let’s shove this down the throats of the Democrats” attitude. That is consistent with what I’ve seen of Sessions otherwise and leads me to believe that he’s not offering a sincere opinion now, but is simply trying to avoid an otherwise obvious conflict.
One might make this same argument about the filibuster generally. Once the Senate gets to make its own rules regarding cloture, then it should be able to make them on any non-majoritarian basis it chooses. Having said that, I emphasize that I think the filibuster itself clearly contradicts the intent of the Constitution and it should be abolished in all cases.
We’ll have to agree to disagre on this. The unrepresentative nature of the Senate will destroy the country. It needs to be eliminated.
February 10, 2010, 1:36 pmTatil says:
Considering “60 votes to break a filibuster” is a procedural rule instituted by Senate, not Constitution and it was not used as a regular barrier to nominations or legislation until very recently, who needs to learn more history and civics?
February 10, 2010, 1:39 pmTatil says:
Each vote becomes more valuable, so commands a higher price. Do you think there would be a special ($40 billion?) Nevada health care give away if the barrier was set at 51?
February 10, 2010, 1:41 pmDave N. says:
All I have asked for is a link. Not “You know it happened,” which is not a response. Since you are making the assertion, then provide an actual example of a Republican speaking with the mendacity of Senator Reid. it is not my job to do your work for you. Since the Republican position was, according to the talking points, so widespread, then it shouldn’t be too hard to find one Republican who has spoken out of both sides of his mouth.
Name the Republican and provide the links.
February 10, 2010, 6:06 pmStones Cry Out - If they keep silent… » Things Heard: e105v3 says:
[...] It’s interesting when democrats accuse the GOP of hypocrisy. [...]
February 10, 2010, 9:23 pmThe Volokh Conspiracy » Blog Archive » President Makes Fifteen Recess Appointments says:
[...] would avoid taking full recesses in the Senate to prevent recess appointments from being made. Not anymore. Back then, Senator Reid maintained that recess appointments were “an end run around the [...]
March 27, 2010, 7:17 pmBelow The Beltway » Blog Archive » Obama Makes 15 Recess Appointments, Revealing Bipartisan Hypocrisy says:
[...] And while conservatives seem to be reacting quite strongly to this action, with one conservative blogger calling it an example of “Obama’s Thug-ocracy,” the truth is that recess appointments are fairly common. President Eisenhower, for example, utilized recess appointments to appoint three Supreme Court Justices — Earl Warren, William Brennan, and Potter Stewart. More recently, President Reagan made 243 recess appointments over eight years, President Bush (41) made 77 recess appointments over his one term, and President Bush (43) made 170 recess appointments in his eight years. However the second President Bush’s ability to make recess appointments was severely curtailed after 2006 when Harry Reid the devised the strategy of never adjourning the Senate. [...]
March 28, 2010, 10:05 am