The NY Times pretends to examine the legal and Constitutional issues surrounding Obama's recent recess appointments. They include this "the devil made him do it" howler in the second paragraph:
Senate Republicans had been using procedural rules and filibusters to block or delay the confirmation of nearly 200 agency nominations, leaving vital positions vacant and neutralizing agencies they did not like. That compelled Mr. Obama to escalate matters further on Wednesday, making recess appointments even though the Senate was technically not in recess.
Obama was compelled! The most powerful man in the world was powerless on this point.
The Times extensive research did not include a review of their own writing on this topic. For example, we are offered the assurance that, even though Harry Reid invented the pro forma sesion in order to thwart Bush during 2007/08, it has only become a problem lately:
Senator Harry Reid of Nevada, the majority leader, began using pro forma sessions, lasting just seconds, in late 2007 to keep the Senate nominally in session and prevent President George W. Bush from making recess appointments.
...The White House and Senate Democrats say the experiences of Mr. Obama’s nominees had become intolerable. In the two years that Mr. Bush had to contend with a Democratic Senate, 740 of his 981 nominees for civilian positions were confirmed, a rate of 75 percent. During the 112th Congress, 285 of Mr. Obama’s 503 civilian nominees have been confirmed, or 57 percent, according to Senate statistics.
So the process has only gone to hades recently. Hmm - back in the spring of 2008 the Times editors deplored Bush's intransigence in simply refusing to give Harry Reid what he wanted and had this to say about the state of the government:
Unhappily for the country, we have learned that Mr. Bush has no idea when standing on principle becomes blind stubbornness and then destructive obsession. So it goes with his choice to run the Justice Department’s Office of Legal Counsel, Steven Bradbury.
...Mr. Bradbury is widely viewed on both sides of the aisle as such a toxic choice that he will never be confirmed. The Senate has already refused to do so twice. Still, Mr. Bush clings to this lost cause, snarling the confirmation process for hundreds of nominees and crippling parts of the federal regulatory apparatus.
See, back then it was Bush that was snarling the process. Fortunately, the ever-reasonable Harry Reid had a plan:
When Mr. Bush refused to withdraw the Bradbury nomination, the Senate’s Democratic leaders decided to stop processing other controversial nominations. Senator Harry Reid, the majority leader, twice offered to resume confirmations and compromise on candidates if Mr. Bush withdrew Mr. Bradbury — and forwarded the names of six Democrats chosen for bipartisan panels like the Federal Election Commission. The White House refused, and Mr. Reid took to keeping the Senate in pro forma sessions during vacations to prevent Mr. Bush from making a recess appointment of Mr. Bradbury and other objectionable choices.
At this point, according to a review by Politico.com, the election commission, the Consumer Product Safety Commission, the Mine Safety and Health Review Commission, the Chemical Safety and Hazard Investigation Board and the National Labor Relations Board do not have enough members to do their jobs. Scores of federal judgeships are vacant. The Council of Economic Advisers is down to one adviser.
This is bad for the country. Mr. Bush should withdraw Mr. Bradbury’s nomination, replace him at the Justice Department with someone committed to upholding the law and take Mr. Reid’s offer. The president’s hyperpartisanship and my-way-or-the-highway arrogance is now close to paralyzing his own administration.
If only Bush had given the Democrats what they wanted the near-paralysis of his Adminstration could have been avoided. Of course, today if the Senate would agree to amend the Dodd-Frank bill, Obama's troubles would pass. Or would they? Even the Times manages to detect a whiff of politics in Obama's "compulsion":
Mr. Reid has stayed silent on Mr. Obama’s decision. Privately, Senate Democratic aides said he backed it as part of a broader effort by Mr. Obama to confront Republicans in Congress. One of the parliamentary minds behind the pro forma session said in an interview that Democrats knew from the beginning that it might be challenged.
The move will almost certainly face legal scrutiny.
John Elwood, a senior lawyer in the Bush administration, said that any business affected by a regulation under Mr. Cordray or a decision by the labor relations board could have legal standing to challenge the action as illegitimate, because the plaintiff could claim that it was directed by officials not lawfully appointed.
If the president had flouted the pro forma sessions to name someone to a less divisive position, like the head of the Justice Department’s Office of Legal Counsel, which provides internal legal advice, virtually no one outside the administration would be affected by the move, Mr. Elwood said. Instead, Mr. Obama rolled the dice, setting off a legal process that could last years.
“It’s a high-roller move,” he said.
The Times does present a bit of the Republican spin:
Republicans say the White House and Senate Democrats share the blame. Democratic committee leaders are responsible for the scores of nominees that have not gotten through their panels, said Don Stewart, a spokesman for the Republican leader, Senator Mitch McConnell of Kentucky.
Mr. McConnell was prepared to clear a long list of presidential nominees before the holiday break if the president had offered his assurance that he would not ram through recess appointments, Mr. Stewart added. Mr. Obama did not.
How many are stuck in Democrat-controlled committees?
Republicans have responded with stalling tactics that have left 74 nominees pending consideration on the Senate floor and an additional 107 bottled up in committees, many of them for economic posts or to run initiatives that Republicans fiercely oppose.
Obama chose this fight and now the Times is flacking for him. Surprise!
MEMORY LANE: Let's reprise the Times exultation when Harry Reid brought the pro forma genie out of the bottle:
Democrats Move to Block Bush Appointments
By CARL HULSE
WASHINGTON, Nov. 20 — Who says the Senate cannot act quickly? It conducted a full day’s business in less than 30 seconds on Tuesday.
Of course, there was no real business to conduct. But fearing that President Bush would again use a Congressional recess to install disputed executive branch appointees without Senate confirmation, Democrats convened the Senate for the first of four microsessions to be held during the holiday break, precisely to thwart such an end run.
“I am glad to see the leadership stepped up here,” said Jim Webb, the junior senator from Virginia, called upon by the majority to open the Senate with a skeleton staff for the express purpose of immediately closing it down.
Senator Harry Reid of Nevada, the majority leader, chose to schedule the so-called pro forma sessions because Mr. Bush took advantage of past recesses to install nominees including John R. Bolton, as ambassador to the United Nations, and, most recently, Sam Fox, a donor to Swift Boat Veterans for Truth, as ambassador to Belgium. This time, Democrats were particularly suspicious of plans to appoint as surgeon general a nominee they oppose.
“This is the first time that pro formas have been used to block recess appointments,” said Jim Manley, a spokesman for Mr. Reid.
But Democrats appear dead set against allowing any more recess appointees, who would serve until the end of the next Congressional session — that is, essentially through the end of Mr. Bush’s term. So unless there is an agreement between the White House and Democrats, it appears likely the Senate will not be in formal recess any time through 2008.
And that might mean more trips for Mr. Webb from his home in nearby Northern Virginia to preside in a nearly empty Capitol.
“It is not very fun going through the traffic,” he said, “but I don’t mind. I think this is important.”