The Hypocritical Liberal Defense of Obama’s Recess Appointments

In January 2006, The New York Times published an

unsigned editorial attacking “the grandiose vision of executive
power” displayed by President George W. Bush, who was then battling
Senate Democrats over the fate of several controversial nominees to
federal office. “Seizing the opportunity presented by the
Congressional holiday break, Mr. Bush announced 17 recess
appointments—a constitutional gimmick,” announced the
Times.In response to Bush’s use of the recess appointment power to
bypass the Senate confirmation process, Senate Democrats in late
2007 adopted a new defensive posture. A member would gavel the
Senate into pro forma session every few days in order to prevent it
from going into recess over the holidays, thereby denying the
president the legal ability to make any more recess appointments.
It did the trick. As Times reporter Charlie Savage

put it, “Senate Democrats repeated the move during breaks for
the rest of Mr. Bush’s presidency, and Mr. Bush did not try to make
any further recess appointments.”Like George W. Bush before him, President Barack Obama has also
invoked the recess appointment power under dubious circumstances.
But unlike Bush, Obama decided to bulldoze right over the
inconvenient fact that the Senate was conducting a pro forma
session at the time. On January 4, 2012, Obama made four purported
recess appointments when the Senate was not actually in recess,
including the addition of three members to the National Labor
Relations Board.That unprecedented unilateral action triggered last Friday’s

sharp ruling by the U.S. Court of Appeals for the District of
Columbia Circuit, which found Obama’s three NLRB appointments to be
in violation of the Constitution. Obama’s tactics, said the D.C.
Circuit, “would demolish the checks and balances inherent in the
advice-and-consent requirement, giving the President free rein to
appoint his desired nominees at any time he pleases, whether that
time be a weekend, lunch, or even when the Senate is in session and
he is merely displeased with its inaction. This cannot be the
law.”So how did the editorial board of The New York Times
respond to this decision? Given the paper’s previous stance in
opposition to Bush’s recess appointments and “the grandiose vision
of executive power” they embodied, you might expect the Gray Lady
to cheer a judicial rebuke of Obama’s even greater abuse of that
same executive power. But you would be wrong.In an unsigned editorial titled “A Court Upholds Republican
Chicanery,” the Times
blasted the D.C. Circuit for placing limits on Obama’s
authority. “With no sign that Republicans are willing to let up on
their machinations, Mr. Obama was entirely justified in using his
executive power to keep federal agencies operating,” the editorial
declared.So much for taking a principled stand against executive
overreach.Nor were the editors of the Times the only prominent
liberals to change their tune on the desirability of presidential
power grabs. At The New Yorker, legal affairs writer
Jeffrey Toobin
denounced the D.C. Circuit’s ruling as “right-wing judicial
activism” that serves only to provide “a huge gift to the
contemporary Republican Party—especially to Republican
senators.”Once upon a time, Toobin expressed more concern about the
separation of powers. In his 2007 book The Nine: Inside the
Secret World of the Supreme Court, Toobin painted a negative
portrait of the “new and expansive view of executive power”
championed by the George W. Bush administration and its allies in
the conservative legal movement. Now that Obama has the reins,
Toobin is apparently less troubled by such matters.But more to the point, Toobin should know better than to try to
pass off the D.C. Circuit’s ruling as a “right-wing” act. Toobin is
a prominent legal journalist so he is surely aware of the legal
challenge launched against President Bush’s 2003 recess appointment
of William H. Pryor to the 11th Circuit Court of Appeals. When that
case reached the federal appellate level, Democratic Sen. Ted
Kennedy of Massachusetts filed a
friend of the court brief urging the 11th Circuit to adopt
almost the exact same limits on the president’s recess appointment
powers embraced by the D.C. Circuit last Friday. Among the
attorneys representing Kennedy in his brief was Harvard law
professor Laurence Tribe, a leading liberal academic and sometime
mentor to Obama himself.“The President may not make recess appointments during
intra-session Senate breaks,” argued Kennedy’s brief. The D.C.
Circuit reached the same conclusion in the NLRB case. Because
Obama’s NLRB appointments were made during an intra-session break,
rather than during “the recess” that falls between Senate sessions,
those appointments are invalid.If that ruling by the D.C. Circuit was an act of right-wing
judicial activism then Sen. Kennedy and Professor Tribe now qualify
as leading champions of right-wing judicial activism—a preposterous
notion.In the midst of all this liberal hypocrisy, it’s refreshing to
find that President Obama has managed to stick to his guns on this
issue. In 2005 then-Sen. Obama joined his Democratic colleagues in
opposing President Bush’s recess appointment of John Bolton as U.N.
ambassador. (Bolton’s appointment by Bush would also be
unconstitutional under the D.C. Circuit’s “right-wing” decision.)
Yet Obama never objected to Bush’s authority to wield that
particular power. “The president is entitled to take that action,”
said, “but I don’t think it will serve American foreign policy
well.”So Obama is at least being consistent. The same cannot be said
for many of his liberal defenders.

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The Hypocritical Liberal Defense of Obama’s Recess Appointments

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