But that doesn’t explain why Obama limited his appointments to agencies threatened with obstruction-induced obsolescence. The underlying legal theory allows recess appointments for any reason. And there are a lot of empty chairs around the federal government right now.
There are two empty seats on the Federal Reserve’s Board of Governors. There’s an acting director running Fannie Mae and Freddie Mac who has foiled many of the administration’s more ambitious ideas to heal the housing market. There are empty spots atop the Federal Deposit Insurance Corp. and the Office of the Comptroller of the Currency. In a year when the Obama administration is unlikely to get much through Congress, these vacancies make it harder for them to do more through executive action, too. In some ways, then, the question isn’t why they’re making these controversial recess appointments, but why they’re limiting themselves to appointing four of the 202 nominees languishing in the confirmation process.
One answer is that it can be hard to persuade good candidates to accept recess appointments — particularly when the appointments are made under unusual, controversial circumstances, as is the case here. This is, frankly, somewhat difficult to believe: Is there really no qualified housing-policy expert in the nation who would be interested in spending two years atop Fannie Mae and Freddie Mac in a bid to better the worst housing market since the Great Depression? That seems unlikely. But, to be fair, I’ve not actually tried to recruit any takers for the job.
Another is that bipartisanship matters more in some areas than others. Federal Reserve Chairman Ben Bernanke opposes recess appointments to the Federal Reserve Board, as the body has traditionally been nonpartisan and noncontroversial, and the Fed would like to keep it that way. Plus, the administration holds out hope that their Noah’s Ark strategy will lead to quick confirmations here.
A third is that confirmed nominees are worth much more than recess appointees in certain positions. A recess appointee can only stay till the end of the next Senate term — in this case, the end of 2013. A traditionally confirmed appointee to the Federal Reserve’s board gets 14 years, and a judge gets a lifetime appointment.
And there’s some hope that the Obama administration can have it both ways. By aiming their recess appointments at institutions threatened with effective nullification, they simultaneously show that they can overcome Republican obstruction but confine their new precedent to a narrow application. Perhaps, knowing that the administration can appoint who they want if they so choose, Senate Republicans will prefer a deal to a hundred recess appointments being made atop their objections.
But it seems at least as likely that Republicans retaliate by refusing to move any and all nominations. That leaves hundreds of unconfirmed nominees sitting in the cold. And, though the Obama administration might argue that they’re working under a narrow view of when you can and can’t recess appoint over congressional objections, it is unlikely that the next Republican administration will resist the urge to follow the White House’s new precedent to its natural endpoint.