The White House, which notes that President Bush made 61 recess appointments at this point compared to Obama’s 28, counts 74 nominees pending on the Senate floor. These include some quite senior jobs, such as deputy secretaries at Commerce and at Housing and Urban Development as well as five officials at the Department of Energy.
Sure, they’d only be allowed to serve for at most two years (see our colleague Ed O’Keefe’s summary Q&A on this) — or most likely one if Obama loses his own job. But it’s better than nothing.
Oddly enough, it’s unclear that a President Romney could kick Cordray and the NLRB folks out next year. Unlike appointees who serve at the pleasure of the president, those four appointees are in jobs with five-year terms — removable only for cause — even though, under the Constitution, they can only serve two years.
Obama’s move focused on posts which, if unfilled, would seriously hamper the ability of the organizations to function. The administration’s focus on filling mission-critical jobs notwithstanding, its language was somewhat expansive.
Senate Republicans’ use of 30-second “pro-forma” sessions were but a ploy to thwart Obama’s ability to recess-appoint stalled nominees, the White House argued, and thus were no barrier to his constitutional authority to make recess appointments. So it’s not immediately clear why other nominees couldn’t be recessed as well.
The Republicans blasted what they called an unconstitutional power grab and there was chatter about litigation up to the Supreme Court — which may or may not want to get involved.
Curiously, Senate Majority Leader Harry Reid (Nev.), the godfather of the pro-forma ploy, who began them in 2007 to block Bush from making recess appointments, said he supported the Cordray appointment.