Approval Deferred

The Washington Post's Ezra Klein on Friday noted

The administration scored a big victory last night, or at least it thinks it did.

On Thursday night, the United States Senate approved by unanimous consent 27 of 63 appointments President Obama had made to federal positions which had been held up by the holds various Senators had placed. The President in his statement afterward "warned"

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future.

But this may be a pyrrhic victory, if any victory at all. Klein points out

At this point in his presidency, George W. Bush had made 10 recess appointments. Over the course of his presidency, he would make almost 200. Bill Clinton made about 150. In describing recess appointments as "a rare but not unprecedented step," Obama made it harder to actually make any, because he's defined the procedure -- which, unlike the hold, is a defined constitutional power of the president rather than a courtesy observed in the Senate -- as an extraordinary last-resort. He also promised, later in the statement, that he wouldn't make any appointments this recess.

Not only have recess appointments commonly been made in the recent past, but the hold placed by the two Alabama senators, Pete Sessions and Richard Shelby, bring to mind the deals Republicans famously derided as the "Louisiana Purchase" and "Cornhusker Kickback" and are reminiscent of the "lobbying and horse-trading" decried by the President in his State of the Union address. (The hold doesn't prevent an up-and-down vote, but it would require 60 votes for cloture.)

The Senators from Airbus still are holding up the nomination of two especially impressive nominees. Frank Kendall, who would serve as Principal Deputy Under Secretary of Defense (PDUSD) for Acquisition and Technology, "appears intent on fixing some of the urgent management and cost problems with defense acquisitions."

And then there is the matter of Dawn Johnsen, who should already be in charge of the Justice Department's Office of Legal Counsel. Johnsen has withstood the confirmation process and is highly, perhaps uniquely, qualified to provide the independent, apolitical, and expert legal advice the Attorney General and the President must be given- and which President Bush so rarely received from Jay Bybee and the notorious John Yoo. But Johnsen, a supporter of abortion rights and opponent of torture, is offensive to many Republicans and Senate Majority Leader Reid refused over several months to post her nomination for a vote while his party had a 60 vote majority.

At one time, Republican Arlen Specter was an avowed opponent of Johnsen; now a Democrat, the senior Senator from Pennsylvania supports her. Ben Nelson (D-NE) apparently has remain opposed to Johnsen, but Republican Richard Lugar of Indiana has announced his intent to vote for her.

If Harry Reid believes that he and Democratic Whip Dick Durbin could not muster the 60 votes needed to impose cloture and get Dawn Johnsen approved, there is an alternative- a recess appointment for her and the 36 other nominees still being held up by the GOP. Klein believes the White House "promptly shot itself in the foot" when the President, in his statement Thursday night, said

I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments. This is a rare but not unprecedented step that many other presidents have taken.

Certainly, that does complicate any effort by Obama to make recess appointments, now that he has termed it "a rare.... step." And it is possible that Barack Obama, who ran an extraordinary, nearly flawless campaign and whose oratory may be second to none, simply goofed and painted himself into a corner.

Perhaps. Perhaps. Perhaps the language serves an intended purpose. Once Specter held a second meeting with Johnsen and then announced his support of her, Reid had at least 59 votes. Ben Nelson contends that he was never asked to support her, and it is unlikely that Senators Snowe and Collins of Maine would have voted against cloture. But Ryan Singel at Wired/Threat Level recently argued

The FBI and telecom companies collaborated to routinely violate federal wiretapping laws for four years, as agents got access to reporters’ and citizens’ phone records using fake emergency declarations or simply asking for them....

The Obama administration retroactively legalized the entire fiasco through a secret ruling from the Office of Legal Counsel nearly two weeks ago.

That’s the same office from which John Yoo blessed President George W. Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.

Given that Johnsen would now head that same office, and one blogger at Firedoglake contends that Obama, Emanuel, and Reid

did not really want a true advocate for governmental transparency, a critic who excoriated Bush/Cheney policies on warrantless wiretapping, torture, indefinite detention, ignoring international treaties and conventions, and concentration of power in a unitary executive; all policies the Obama Administration has substantially co-opted as its own.

The nomination of Dawn Johnsen and many others is not dead. But the response of President Obama, thus far, has been- intentionally or otherwise- inadequate.