Shifting the Balance From the Senate.

Ruth Marcus writes today that President Obama's decision to install Donald Berwick by recess appointment was "outrageous." By her lights, a recess appointment is "the last step in cases of egregious delay," and Obama should have gone through the normal confirmation process before taking this option.

Marcus, like others, doesn't seem to understand that the Senate has seen a tremendous change in norms, beginning with the 104th Congress and continuing into the present. Whereas previous Senates were mostly deferential to the president's nominees, these Senates -- and particularly the current one -- have taken to routinely opposing nominees, regardless of the position's importance or the candidate's actual acceptability. This is key; when there is a clear policy reason for a filibuster -- for instance, the nominee's ideology is objectionable to the critical vote in a filibuster -- the president can still meet his goals by offering a similar but less objectionable nominee. But when obstruction is routine, and there's no point at which the president can meet the preferences of an objecting senator without sacrificing his goals, then it doesn't make any sense for a president to bother with the confirmation process.

Instead of chastising President Obama for circumventing the confirmation process, critics of this recess appointment should direct their fire at the Senate. By refusing to confirm hundreds of unobjectionable nominees, Senate Republicans have drastically tilted the balance of power in their direction, forcing the president to rely on his other powers. The more Republicans refuse to confirm the president's nominees, the more he'll appoint them during recess. As I've said before, I think this is a good thing; not only does it allow the president to pursue his policy choices -- as is his prerogative -- but in the absence of Senate reform, it can push the minority into greater cooperation. By cutting them out of the process, President Obama will force Senate Republicans to choose between some input and none, pushing them to yield on all but the most controversial nominees.

-- Jamelle Bouie

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