I argued over at the Plum Line yesterday that Barack Obama should fight back against Republican obstruction by making a recess appointment right now, even though House Republicans are preventing a proper recess through procedural gimmickry, and even though George W. Bush respected precedent and did not make any recess appointments when Senate Democrats used similar tactics in 2007-2008 (details there, and in this earlier post; see also Ari Berman's arguments). The argument I made over there, which I think is a reasonable one, is that there's a huge difference between action to block appointments taken by a majority of the Senate compared to action taken by the House, which has no Constitutional role in confirmations.Bernstein argues that a handful of recess appointments despite creative House GOP obstruction could lend credence to Obama's willingness to fight back, without much takeaway from the "reasonable one" image he seems obsessed with maintaining above all else.
Simply put, House Republicans will squawk, and Obama could use recess appointments to show he isn't afraid of that. In March 2010 he made 15 recess appointments to "send a message" to Republicans to stop stalling. Confirmations to offices at the Federal Deposit Insurance Corp, Office of the Comptroller, commerce secretary, a long list of federal judicial positions and of course the director of the Consumer Financial Protection Bureau are still held up by what amounts to a procedural farce.
Both Clinton and Bush Jr. made more than 100 recess appointments each, despite facing less opposition from the Senate. Today's Republicans have made it clear they'll stall for two full terms if they can. And as Bernstein points out, this is the House holding things up now, not the Senate.
It's hard to see what the President is waiting for.