In one of the oddest moves by Barack Obama in his presidency, the White House announced six recess appointments late yesterday, including James Cole for the #2 position at the Department of Justice. Robert Ford also will be the new ambassador to Syria, ending the controversy over his nomination. All six will have the opportunity to hold their jobs for another year, when the next recess is expected at the Christmas holiday:
Because he was appointed while the Senate is in recess, Robert Ford, a career diplomat, will not need Senate confirmation. But he can serve only until the end of the next session of Congress, which will likely be in December 2011.
Ford’s nomination was held up by a group of GOP senators who complained that the administration had failed to articulate a viable policy toward the Syrian government, which has been charged with supporting Hezbollah militants and other anti-Israel groups. …
Ford was one of six long-stalled nominees Obama appointed Wednesday, including ambassadors to Turkey, the Czech Republic and Azerbaijan. The president also appointed James M. Cole as deputy attorney general.
Cole’s nomination had stalled in the Senate because of Republican concerns about his comments about terrorism and his work as an independent contractor for the insurance giant AIG.
Why so odd? Obama enjoyed a Senate majority larger than any President since Jimmy Carter, with an 18-seat advantage for most of the last two years, and for at least a few months, a filibuster-proof 20-seat majority. Harry Reid could have pushed hard to get confirmation hearings for these nominees, or the Obama administration could have helped by nominating people with less baggage. Either way, a President who has to make recess appointments while holding an 18-seat majority is either an incompetent or selecting radical nominees so far out of the mainstream as to lose members of his own party — or perhaps both.
What, if anything, can be done by the imperious recess appointments of such controversial nominees? Todd Gaziano of the Heritage Foundation emails me, “The real threat (which Robert C. Byrd famously did once) is for the entire GOP caucus” to refuse to consent to any further nominees unless Obama agrees to refrain from issuing more recess appointments. Gaziano says that Republicans “could refuse to confirm another judge, diplomat, etc. until they extract their promise.” There is also the power of oversight (to grill appointees on how they intend to perform their jobs) and of the bully pulpit (to publicize the records of these nominees). But the lesson for the GOP here may be to refrain from offering too many open hands to an administration only too eager to slap them and demonstrate disdain for a co-equal branch of government.
Interestingly, these recess appointments come on the heels of an agreement between Reid and Mitch McConnell to confirm 19 judicial appointments by Obama in exchange for deep-sixing four of the most controversial, including Goodwin Liu to the 9th Circuit Court of Appeals. As Rubin surmises, Obama can probably expect a lot less cooperation in the future on his nominations, and plenty of demands for testimony from Cole, Ford, and the other four recess appointments, especially in the Republican-controlled House.
The Boss Emeritus reminds us of the reason Cole was never confirmed:
On September 9, 2002 – the eve of the first anniversary of the 9/11 attacks – Cole wrote in an op-ed in Legal Times:
“[T]he attorney general is not a member of the military fighting a war — he is a prosecutor fighting crime. For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights.
Our country has faced many forms of devastating crime, including the scourge of the drug trade, the reign of organized crime, and countless acts of rape, child abuse, and murder. The acts of Sept. 11 were horrible, but so are these other things.”
Kind of like Ahmed “Foopie” Ghailani, right? Er ….