Were Obama’s Recess Appointments Really About Senate Obstruction?

Monkey Cage reader and University of Kansas political scientist Michael Lynch sends the following:

This weekend Obama made 15 recess appointments. Obama argued that these were necessary because of Senate Republicans’ obstruction of key nominees, pointing to these nominees’ 214-day average wait for Senate confirmation (see Charles Franklin’s post on Pollster.com for a detailed analysis of Senate delay of Obama appointees).
In recent research on recess appointments with Ryan Black, Ryan Owens, and Tony Madonna, we examined all 10,007 nominations made by presidents between 1987 and 2006 to look at how the Senate deals with recess appointments. In the process, we consider the factors that explain the 414 recess appointments that took place during this time period. In multivariate analysis, confirmation delay does not have a statistically significant effect on a president’s decision to make a recess appointment. It is important to note that we measured confirmation delay as a yearly average of days to confirmation, as opposed to the nominee-level delay cited by Obama and others.
Given our analysis, I believe that Obama’s decision to make recess appointments may have more to do with pure policy concerns than with excessive delay by Senate Republicans. I think the most interesting thing about the list of recess appointments made by Obama is the inclusion of 2 NLRB appointees. In a previous paper on recess appointments we argue that presidents are far more likely to make recess appointments to independent boards and agencies because these bodies make policy through the cases they hear and issue rulings on. In this way, presidents can quickly and efficiently effect policy through a limited number of recess appointments.
This is especially true with the NLRB. Obama’s appointees to the NLRB will immediately start hearing cases and arguably making pro-labor decisions. Interestingly, the NLRB had three of its five seats vacant before this weekend. These vacancies, which have existed since December of 2007, meant that the NLRB did not have the quorum that is required for them to meet. The two-member board has issued rulings anyway, but there are current legal challenges to the lawfulness of these rulings. The bipartisan NLRB will go from having one Democrat and one Republican member with questionable legal authority, to having three Democrats and one Republican and the ability to quickly fill a two-year gap in labor law with pro-labor rulings.
Obama also made three appointments to the EEOC, an independent board that had only two of its five positions filled until this weekend’s recess appointments. Combining the NLRB and the EEOC, one-third of Obama’s fifteen recess appointments were to independent boards. This is especially interesting considering independent board appointments make up only 3.4% (343) of all 10,007 nominations made between 1987 and 2006 and that past presidents only used recess appointments for 47 of these 343 appointments. Obama has clearly chosen to make the biggest impact on policy possible with his first round of recess appointments.

Senate obstruction certainly can’t tell us why Obama picked certain obstructed nominees and not others. Policy impact seems relevant. One also wonders if the appointments serve political goals as well by appealing to key Democratic constituencies—e.g., labor and minorities.

One Response to Were Obama’s Recess Appointments Really About Senate Obstruction?

  1. Brian Arbour April 1, 2010 at 5:01 pm #

    To Lynch’s point, Senate obstruction could work the same way. That is, the minority party in the Senate could be more likely to obstruct a nominee to an independent board. The stakes would go up for both sides.

    The labor-business cleavage between the two parties remains very strong, and thus the NLRB is a high-stakes body for the coalition partners of the two parties. The NYTIMES article today on NLRB helps drive this home.