I think it's worth responding to Keith Hennessey's objection to President Obama's recess appointment of Donald Berwick:
In the past recess appointments have been used after an
actual filibuster. In this case the President is using a recess
appointment to avoid the threat of a potential filibuster. Doing so
also allows the nominee to avoid answering an uncomfortable question
about his foundation’s funding sources. It also allows the
Administration to duck a reprise of the health care reform debate four
months before Election Day.
The Berwick recess appointment is
extraordinary because the confirmation process didn’t even begin and
because Republicans cannot be held responsible for the delay. In the
eleven weeks since the nomination Chairman Baucus never held a hearing
on Dr. Berwick. While some Senate Republicans threatened a future
filibuster, no Senate Republican has yet had an opportunity to delay or
block the confirmation process so far.
true that Senate Republicans had yet to take action on Berwick, it's
also true that Republicans have taken to filibustering nominees as a
matter of course. Hennessey suggests that only controversial nominees
are filibustered, but as Jonathan Bernstein has noted,
nominations have been stalled for months, with Republicans "eventually
yielding to unanimous or close to unanimous confirmation votes." By and
large, GOP senators are using the filibuster to obstruct Senate business
and deny necessary personnel to the executive branch. For the most part,
you can think of Berwick's recess appointment as a move by President
Obama to preempt Republican obstructionism.
It's worth noting that Obama isn't unique here; George W. Bush issued more recess appointments than Bill Clinton, who issued them more than George H.W. Bush.
As parties remain polarized, and minorities continue to hold the
confirmation process hostage to politics, it's only natural
that presidents will turn to recess appointments to circumvent
obstructionism. Frankly, this is perfectly reasonable; nowhere in the
Constitution does it require the president to disarm himself in the face
of a Senate that categorically refuses to give advice or provide
consent to executive branch nominees. If senators intend to use the
rules to their fullest extent, presidents should also have that right.
-- Jamelle Bouie