Recess Appointments For DOJ Nominees?
By Andrew Ramonas | February 9, 2022 7:14 pm

President Barack Obama told reporters today that he is considering making recess appointments for nominees who are being held up by Republicans in the Senate.

“I respect the Senate’s role to advise and consent, but for months, qualified, non- controversial nominees for critical positions in government, often positions related to our national security, have been held up despite having overwhelming support,” Obama said in an unexpected appearance before the White House press corps.

Dawn Johnsen (Indiana University)

He didn’t say which nominees he may put in office without Senate confirmation during Congress’s recess next week for the Presidents Day holiday. Among the nominations that have stalled are Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, Mary L. Smith for the Tax Division and Christopher Schroeder for the Office of Legal Policy. Their nominations languished in the Senate for months last year before they were returned to the White House in December and re-nominated last month.

“If the Senate does not act …, I will consider making several recess appointments during the upcoming recess because we can’t afford to let politics stand in the way of a well functioning government,” Obama said.

Obama made his remarks after meeting with Republican and Democratic congressional leaders Tuesday. He said he urged Senate Republicans to remove their holds on “nominees for critical jobs.”

“Surely we can set aside partisanship and do what’s traditionally been done with these nominations,” the president said.

A recess appointment lasts until the end of a current congressional session. Without Senate confirmation, the appointees must vacate their positions when a session ends. Recess appointments are controversial. President George W. Bush made a handful of recess appointments over the objections of Democrats, including John Bolton in 2005 to be the U.S. representative to the United Nations.

A senator’s hold doesn’t make it impossible for the Senate to consider nominees. Senate Majority Leader Harry Reid (D-Nev.) could file a cloture petition to move a nomination. Cutting off debate on a nomination, however, is a time-consuming process for the Senate and would be difficult for the Democratic majority with the addition of Sen. Scott Brown (R-Mass.) to the Senate. Brown became the 41st member of the Republican Senate conference last week, ending the Democrats’ filibuster-proof majority.

Reid said on the Senate floor last week that the president might have to start considering recess appointments.


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