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Preserving the Right to Surrender in the Future: Republican Fail

6 min read

Senator Ted Cruz put today’s Republican cave on the nuclear option best:





Republican senators, led by John McCain, who never met a giveaway to Democrats he didn’t embrace wholeheartedly, simply failed to see the historical importance of the issue.  This issue wasn’t about the president’s prerogative to appoint the nominees he prefers; such a prerogative is at best a myth and at worst an utter falsehood perpetuated by partisan supporters of the president who happens to be in power at the moment.  The momentum was on the Republican side: Obama’s recess appointments had been successfully challenged in the D.C. Circuit and the Third Circuit, and the Supreme Court was set to take up the issue.

No president has the power or the prerogative to simply appoint the nominees of his preference.  The Appointments Clause of the United States Constitution divides the power to appoint between the President and the Senate.  Indeed, the Framers of the Constitution specifically rejected unilateral executive power for appointments in favor of a shared appointment power.  The president nominates, but the Senate gives advice and consent.

To the extent that the Appointments Clause gives the President the ability to appoint temporary nominees during the recess of the Senate, it is only to preserve the workability of government. The Senate does not obstruct when it rejects the President’s nominees in a way that justifies the President waiting until a recess; the President impedes the ability of the Executive to get its business done when he nominates individual he knows the Senate will not confirm.  It is not the fault of the Republicans in the Senate that President Obama nominated individuals they would not confirm; it is the fault of President Obama that he sent those nominees to certain defeat through filibuster and procedural obstruction.

Simply put, the Appointments Clause gives the Senate the ability to reject or hold up nominations.  The fact that nominations are being held up does not legitimate the President seeking to engage in recess appointments, or justify his redefinition of recess to encompass intra-session breaks, which is exactly what President Obama attempted to do when he nominated Craig Becker to the NLRB during a pro forma session of the Senate.

Any senator or group of senators is fully within their power to hold up advice and consent on a particular presidential nominee through a filibuster or other procedural device.  If the President does not like this, he may attempt to compromise by withdrawing a nominee from consideration in order to reach a compromise on another nominee.  To suggest, as President Obama does, that the Senate is somehow out of line for failing to immediately bend to his unilateral will, is patently absurd.

Filibusters happen in the Senate. Vote holds happen in the Senate. There is a simple mechanism in place to defeat a filibuster or achieve cloture, and that mechanism is a 60 vote majority.  If the President can’t get 60 votes for one or more of his nominees, that ought to be a sign to him that perhaps he nominated the wrong individual to achieve the Senate’s advice and consent, which they are constitutionally vested with the power to grant or to withhold.  In any event, the onus shifts back to the President, and not to the minority utilizing a filibuster to gain concessions.

If President Obama were to have his way, he could simply avoid the constitutional requirement for advice and consent for his nominees by simply pushing the nominees through at any time the Senate happened to be out of session. That’s dangerously unconstitutional, but it’s exactly the argument the NLRB’s lawyers made before the Third Circuit.

Any moment the Senate was out of session was a “recess” for their purposes, and the President could appoint his nominees as he saw fit during those recesses.   It did not matter, and it does not matter, to this President that his view of recess appointments would effectively obliterate the constitutional requirement for the advise and consent of the Senate over appointments.  That’s because this President, with his waivers to states and employers when it comes to complying with the laws of the United States, and his Justice Department’s Non-Prosecution or Deferred Prosecution Agreements for lawbreaking corporations, has not one whit of respect for the rule of law if it restrains his power.

Senate Majority Leader Harry Reid managed to ram through the nominations by threatening to employ the nuclear option, which he could have legitimately done.  He would have undermined his own body’s ability to operate, and unleashed rancor that would have further slowed the Senate’s pace.  In the end, he didn’t have to, because Senate Republicans gave in to his threat.

The actual vote to advance Richard Cordray’s nomination was telling: by a vote of 71-29, with 17 Republican senators voting yes for cloture, Cordray’s nomination moved towards a confirmation vote. If 17 Republicans would cross over to vote for cloture, how could Harry Reid argue that Cordray’s nomination couldn’t achieve an additional five Republican votes for outright filibuster-proof confirmation?  With 54 Democrats, the Democrats needed to break the filibuster was 6 Republican votes.

It strains credulity to believe that Reid could get 17 Republican votes for cloture to proceed on the nomination, while being unable to get 5 Republicans to defeat the filibuster of Cordray’s nomination.  In the end, 12 Republicans actually voted for Cordray’s confirmation, which further undermines Reid’s contention that the nuclear option was necessary.  Additionally, those 12 Republicans who voted to confirm Richard Cordray raise the intriguing question: what was the hold up, anyway?  If 12 Republicans, added to the 54 Democrats, equals 66 votes in favor of Cordray, how did the Democrats lack the votes necessary to override a filibuster?

What was lost today was simple: the credibility of the Senate as an institution on equal footing with the President when it comes to presidential appointments. Advice and Consent is over, a casualty of needless partisan posturing by both parties, and feckless obstructionism on the part of Senator Mitch McConnell, who saw himself bypassed by Senator John McCain during these negotiations even though McConnell is the Senate Minority Leader and outranks McCain.

After months of scandals involving Benghazi, the IRS’s targeting of conservative 501(c)(4) groups, arms to Syrian jihad rebels, Fast and Furious, the NSA PRISM spying program, and a groundswell of opposition on the left against the President’s overreach, the Republicans managed to hand President Obama an out that left him looking stronger than ever.  They blinked, and a President embroiled in scandal upon scandal emerged from this fight with momentum on his side.  Every last one of his future nominees will likely be confirmed; and the constitutional question raised by his recess appointments is likely over and done with, for the Supreme Court will not take it up in the aftermath of this so-called compromise between Reid and McCain.

Additionally, Senate Republicans can no longer make the argument that their resistance to Cordray’s nomination was principled, when 12 Senate Republicans crossed the line to vote to confirm Cordray. In nearly every imaginable way, Senate Republicans failed themselves and the country today, and they handed President Obama a political victory in the process that changed the narrative from his scandals to this present success. Moreover, they gave the President every signal that they will do the same thing in the future: obstruct his nominations, only to blanche at the idea of a nuclear option, thereby revealing their obstruction as mere posturing rather than principled resistance to an overreaching President and his extremist nominees.

As Senator Cruz put it, Senate Republicans preserved the right to surrender in the future.

Jay Batman is a graduate of the Texas Tech University School of Law, where he attained his J.D. in May 2013.  He completed a B.A. in English with a minor in Political Science at the University of Montevallo in 2002. He is employed with Dustin Stockton Political Strategies, LLC, and presently resides in West Texas with his dog and co-author, Buddy Love.

jay batmanJay Batman is a graduate of the Texas Tech University School of Law, where he attained his J.D. in May 2013.  He completed a B.A. in English with a minor in Political Science at the University of Montevallo in 2002. He is employed with Dustin Stockton Political Strategies, LLC, and presently resides in West Texas with his dog and co-author, Buddy Love.  – See more at: