RUTH MARCUS: Circumstances change – so did my opinion – on recess appointment

By Ruth Marcus

WASHINGTON – I gave President Obama some grief last summer for bypassing the Senate and making a precipitous recess appointment for Donald Berwick, his choice to oversee the Medicare and Medicaid programs.
I have a completely different take on the president’s latest such move, to issue a recess appointment for James Cole to serve as deputy attorney general, the No. 2 position at the Justice Department.
This time around, the maneuver was justified.
My assessment has nothing to do with the individuals or positions involved, everything to do with the differences in process. Berwick had been nominated a mere three months before the president chose to appoint him while the Senate was not in session. He had not yet had a committee hearing. His Senate vetting was not complete.
By contrast, Cole was nominated in May. His confirmation hearing took place in June. The next month, the Senate Judiciary Committee voted – albeit along party lines – to approve the nomination and send it to the Senate floor. Where it languished until the recess appointment, part of a batch issued by the president this week.
Deputy attorney general is not some trivial post. He is the chief operating officer of the Justice Department, responsible for its day-to-day management. A vacancy there matters, and the vacancy created by the Senate’s thumb-twiddling on Cole was unprecedented in length in the modern Justice Department. Back during the Reagan administration, a nominee for the job had a 61-day lag. Cole waited 219 days. The recess appointment means he’ll be able to serve a scant year unless he manages to win confirmation in the new Congress.
Cole’s treatment exemplifies the dysfunctional nature of the current confirmation process. It’s not broken – it’s shattered.
Obstruction has become the reflexive norm, not a tactic reserved for the most egregious situations. A recent report by E.J. Dionne Jr. and William Galston of the Brookings Institution offers a window into the problem: At the end of President George H.W. Bush’s first year, they write, only 8 percent of total nominees were awaiting confirmation, compared to 20 percent for Obama (http://bit.ly/gLP4VA). It is possible to get a controversial nominee confirmed with 60 votes, but only at the cost of eating up precious time on the Senate floor.
The case against Cole was flimsy – alleged softness in the war on terror, as reflected in a 2002 op-ed piece, and alleged failure, as an outside monitor for AIG, to uncover wrongdoing at the company outside the scope of what he was supposed to be reviewing.
These complaints reflected partisan straw-grasping, not serious concerns weighty enough to overcome the strong presumption in favor of a president’s choices to staff his administration. On this recess appointment, Senate Republicans have no grounds for griping.

Ruth Marcus’ e-mail address is ruthmarcus@washpost.com. David Broder is on leave, and his column will resume when he returns.