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.
While it's 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