# No more recess appointments - is this the end of the filibuster? **URL:** \ **Category:** Great Debates\ **Created:** [June 26, 2014, 3:42pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702 "2014-06-26T15:42:42Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 29, 2014, 9:01pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/81 "2014-06-29T21:01:25Z")
> [@Elendil\_s\_Heir](#): > > And now it may never be again. So? Recess appointment power was a purely technical power in a time before even telegraphs when elected officials had to be absent from Washington for months at a time. It was never intended as one of the checks and balances between the legislative and executive branches, and thus with modern technology eliminating the need for genuine recesses it’s highly questionable why we should have recess appointments at all. Since the actual text of the Constitution and all the weight of precedent and history and law shows that appointments are generally always supposed to be with Senate approval the recess appointment shouldn’t be viewed as a check on the Senate confirmation power–it was a necessary alternative path only for when the Senate isn’t able to meet. Since the Constitution thus perfectly envisioned the possibility that the President and the Senate couldn’t agree on a nominee the simple fact that this can happen is no concern at all. Especially not in a world where each executive is dramatically more powerful than the other, are people really bemoaning the executive not being given **more** power? When Obama is already more powerful than Bush, who was more powerful than Clinton…etc. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 29, 2014, 9:03pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/82 "2014-06-29T21:03:41Z")
> [@BobLibDem](#): > > The problem is that until now, the minority party never abused its power and just refused to approve appointments because they were opposed to the concept of the position to be filled. Democrats would never have approved Michael Bolton as UN Ambassador, so Bush filled it during recess. It wasn’t that Democrats were opposed to the idea of a UN Ambassador, it’s that they could see what kind of douche Bolton was. Now Republicans simply don’t like the idea of the NLRB and refuse to even consider any appointment. That crosses the line between serving as a responsible check on presidential powers and a naked power grab. Time to kill the filibuster entirely. No one requires the Senate to have a filibuster, that’s internal Senate business. But there is certainly precedent for trying to block Presidential appointments purely out of politics. Roosevelt (first) appointed hundreds of persons to Federal office in a “manufactured” recess that he proclaimed by executive fiat to have occurred between the gaveling out of one session and the gaveling in of the next. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 29, 2014, 9:21pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/83 "2014-06-29T21:21:18Z")
> [@Bone](#): > > I’m unclear what you are saying. I’m not so sure of that. > [@](#): > > Are you saying that the consent powers being used to block any and all nominees regardless of qualifications is not consistent with the constitution? No. :rolleyes: It isn’t “consent powers” that are being used if the majority does indeed consent, is it? Preventing the government from operating is indeed inconsistent with the intent of the Constitution, if that’s what you’re “unclear” about. IOW, duh. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 30, 2014, 12:03am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/84 "2014-06-30T00:03:46Z")
Let’s try this again - RNATB said, “Instead we are looking at a Senate which is using the consent process as an end run around the POTUS’ powers of appointment.” To which I responded that that was consistent with the constitution. In your eloquent riposte you said “No, it isn’t.” So what specifically are you referring to when you say that “it” isn’t consistent with the constitution? Preventing the gover ment from operating was not part of this line of discussion. I await your well reasoned reply. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 30, 2014, 12:14am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/85 "2014-06-30T00:14:43Z")
> [@BobLibDem](#): > > I don’t see the problem. If the minority doesn’t like it, let them filibuster. When 90 days are up, then the appointment is confirmed. If you don’t have 51 votes to deny a confirmation, then it goes through. Hypothetical scenario is as follows: Republican in the White House. Lets call him G W Bush, Jr Senate holds a narrow Democratic majority, say 52-48. President nominates a Supreme Court justice that the Democrats in the Senate find objectionable. Let’s call the nominee Antonin Scalia, Jr. Under the proposed language an appointee is confirmed if not voted upon in 90 days. The Republican minority need only filibuster and keep the confirmation from coming up for a vote for 90 days and the nomination goes through. Democrats never get to use their power of advise and consent to reject the nominee. Of course this presupposes the filibuster is allowed for confirmation of nominees. Harry Reid used the nuclear option to eliminate the filibuster of most nominees, but not of Supreme Court picks. ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [June 30, 2014, 1:48am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/86 "2014-06-30T01:48:59Z")
> [@doorhinge](#): > > The POTUS can still make recess appointments. > > _ **IF** _ the U.S. Senate is actually in recess. > > The POTUS doesn’t get to decide whether or not the U.S. Senate is in recess. Only the U.S. Senate can decide if it’s in recess. No, as mentioned above - the House and Senate decide together if they are in session. So if the House refuses to go into recess, the Senate can’t. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [June 30, 2014, 6:42am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/87 "2014-06-30T06:42:59Z")
> [@Folacin](#): > > No, as mentioned above - the House and Senate decide together if they are in session. So if the House refuses to go into recess, the Senate can’t. OK. Which still means that the POTUS can’t make recess appointments simply because he announced that the U.S. Senate, U.S. House, or U.S. Congress is in recess. It’s not the POTUS’s call. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [June 30, 2014, 6:56am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/88 "2014-06-30T06:56:02Z")
> [@Iggy](#): > > Hypothetical scenario is as follows: > > Republican in the White House. Lets call him G W Bush, Jr > Senate holds a narrow Democratic majority, say 52-48. > > President nominates a Supreme Court justice that the Democrats in the Senate find objectionable. Let’s call the nominee Antonin Scalia, Jr. > > Under the proposed language an appointee is confirmed if not voted upon in 90 days. The Republican minority need only filibuster and keep the confirmation from coming up for a vote for 90 days and the nomination goes through. Democrats never get to use their power of advise and consent to reject the nominee. > > Of course this presupposes the filibuster is allowed for confirmation of nominees. Harry Reid used the nuclear option to eliminate the filibuster of most nominees, but not of Supreme Court picks. That’s a problem for the majority to deal with. It can decide whether using the nuclear option or letting the nominee slide is is the worse option. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [June 30, 2014, 7:07am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/89 "2014-06-30T07:07:42Z")
In all of this, has the Senate ever actually formally voted to adjourn, or has it just not done anything because it knows the House won’t agree? Because it would be pretty hilarious if this case ends up goading Obama into being (AFAIK) the first president ever to use his power to adjourn Congress “to such time as he shall think proper” in the event of a disagreement. Can you _imagine_ the temper tantrum that the House GOP would throw? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 30, 2014, 1:45pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/90 "2014-06-30T13:45:12Z")
> [@Bone](#): > > So what specifically are you referring to when you say that “it” isn’t consistent with the constitution? Preventing the gover ment from operating was not part of this line of discussion. I await your well reasoned reply. You are, for some reason best known to yourself, using the term “the power of consent” to mean “the minority’s power to obstruct any and all actions”. You also seem to think that so doing is either not preventing or limiting the government’s power to operate, or is even within the spirit and letter of the Constitution. There is no discussion possible about views so misbegotten. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 30, 2014, 1:47pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/91 "2014-06-30T13:47:16Z")
> [@Lord\_Feldon](#): > > Can you _imagine_ the temper tantrum that the House GOP would throw? Would it be beyond what we’ve already seen for the last six years? How is that even possible? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 30, 2014, 2:15pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/92 "2014-06-30T14:15:41Z")
> [@ElvisL1ves](#): > > You are, for some reason best known to yourself, using the term “the power of consent” to mean “the minority’s power to obstruct any and all actions”. You also seem to think that so doing is either not preventing or limiting the government’s power to operate, or is even within the spirit and letter of the Constitution. > > There is no discussion possible about views so misbegotten. So you are unable to explain your simple declaration that something…who knows what…is not consistent with the constitution. When you are called on make false statements that have no basis in reality the intellectually honest thing to do would be to either retract them and acknowledge your error, or at least make some effort of explaining. Feel free to continue ducking the issue. I expect no less. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [June 30, 2014, 5:17pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/93 "2014-06-30T17:17:09Z")
> [@ElvisL1ves](#): > > [Plenty of counterexamples.](http://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate#20th_century_and_the_emergence_of_cloture) Even the longest ever failed to stop the 1957 Civil Rights Act. What would be your favorite example of a standing filibuster _succeeding_? :dubious: The Democrats in 2003. The GOP made them stand up and argue against voting to confirm some President Bush’s judicial nominees they found controversial. For the reasons I’ve already explained, the GOP moved on to other business and those nominees never received a vote in that Congress. The (sitting) filibuster continued into the next Congress until the Gang of 14 deal. The other examples from this century were mere publicity stunts. The example of Senator Sanders isn’t even a filibuster. The Democrats controlled the Senate and scheduled him time to air his views. Senator Paul didn’t have enough support in opposing John Brennan (eventually confirmed by a vote of 63-34) and knew going in that his effort would fail. The standing filibuster may occasionally have some value as a political gesture but it’s not a useful parliamentary tactic. > [@](#): > > That’s true even of the go-fuck-yourselves version that the minority now uses as an absolute veto - except that there is no amount of effort by the majority that can defeat it. The majority could change the rules to eliminate the filibuster. But the point is that by acceding to the sitting filibuster the majority can continue to conduct other business. That’s why they don’t force the minority to stand. > [@](#): > > Didn’t you just claim that it moves the majority onto other things? No, I have not claimed that the standing filibuster moves the majority on to other things. What are you trying to say here? > [@](#): > > Better look up “cloture”. I took your advice but it seems that “cloture” means exactly what I thought it meant all along. What are you trying to say here? > [@](#): > > Don’t we already know all the work is done behind the scenes, and that what happens on the floor is showcasing? That’s been the case since, well, always. Saying so won’t constitute a change. It’s a very useful fiction. Back room dealing, however common or necessary in modern government, has negative connotations. More importantly, the fiction gives political cover to senators who don’t wish to cede power to their caucus leaders. The filibuster sticks around because it empowers individual senators. It’s a lot easier to talk about the tradition of open debate than to say that you don’t want to give up personal power. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [July 5, 2014, 10:06pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/94 "2014-07-05T22:06:02Z")
Can someone sum up to me what exactly the President’s options are if the opposing party’s Congressional majority goes up to him and says, “we’re having pro forma sessions all year, and we refuse to bring any nominee to a vote unless it’s from this list of people who believe as we do that we’ve made without your input”? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 5, 2014, 10:09pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/95 "2014-07-05T22:09:19Z")
Oh, I know! He can sue them! Just ask the Speaker of the House. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 5, 2014, 10:31pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/96 "2014-07-05T22:31:15Z")
> [@ElvisL1ves](#): > > You are, for some reason best known to yourself, using the term “the power of consent” to mean “the minority’s power to obstruct any and all actions”. You also seem to think that so doing is either not preventing or limiting the government’s power to operate, or is even within the spirit and letter of the Constitution. > > There is no discussion possible about views so misbegotten. What do you think “advise and consent” means. You seem to think it merely means “advise”. If so, what do you think they meant by “and consent”? ---
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [July 6, 2014, 4:29pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/97 "2014-07-06T16:29:25Z")
> [@BobLibDem](#): > > I don’t see the problem. If the minority doesn’t like it, let them filibuster. When 90 days are up, then the appointment is confirmed. If you don’t have 51 votes to deny a confirmation, then it goes through. It allows a 41% minority to prevent the denial. After 90 days, the default confirmation goes through. 59% could be against the appointment. Do we really want an “Advise and consent of a 41% minority” policy? ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [July 6, 2014, 10:08pm UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/98 "2014-07-06T22:08:36Z")
> [@Leaper](#): > > Can someone sum up to me what exactly the President’s options are if the opposing party’s Congressional majority goes up to him and says, “we’re having pro forma sessions all year, and we refuse to bring any nominee to a vote unless it’s from this list of people who believe as we do that we’ve made without your input”? The President can attempt to reach a compromise with Congress or with a Congressional House majority. Good government is all about the ability to be able to reach a compromise. \*I want person A. We don’t like person A. How about person B? Nope. How about person C? Maybe. Will you trade your support of our choice for a cabinet position if we support person C? Never. Will you support our choice for a lessor post? Depends on who you have in mind. Person D? Not person D. How about person E? No. Person F? No. Person G? No. Do you realize that we will not support your choice if you refuse to support our choice? I have a phone and a pen, I don’t need your support for anything. Good luck with that, Mr. President. The majority of us will be reelected and you, Mr. President, will be gone in two years. \* ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [July 7, 2014, 3:30am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/99 "2014-07-07T03:30:38Z")
But why should the opposition compromise at all? What could the President possibly offer them under the circumstances besides complete capitulation to give them everything that they want and get nothing he wants in return? (Genuine question; if there is an inherent reason here, I’d like to hear it.) ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 7, 2014, 11:22am UTC](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702/100 "2014-07-07T11:22:16Z")
> [@magellan01](#): > > What do you think “advise and consent” means. You seem to think it merely means “advise”. If so, what do you think they meant by “and consent”? So don’t consent, that’s fine too. Vote down the nominee. [Previous page](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702.md?page=4) [Next page](https://boards.straightdope.com/t/no-more-recess-appointments-is-this-the-end-of-the-filibuster/691702.md?page=6)