Senate's top partisans trade positions on recess appointments

Two of the top partisans in the U.S. Senate on Wednesday found themselves diametrically opposed to their former positions on presidential recess appointments, with each man virtually swapping their closely held views for their opponents' with regards to the always-controversial tactic.

Issuing his rebuke of President Barack Obama's decision on Wednesday to name former Ohio Attorney General Richard Cordray head of the Consumer Financial Protection Bureau (CFPB), the GOP's point-man for electing more Republican senators, Sen. John Cornyn (R-TX), stumbled over his own words from less than a decade ago, revealing that he's actually in favor of recess appointments when they're made by a member of his own party.

"Today’s appointment of another unaccountable czar is an arrogant abuse of presidential power," Cornyn said of Obama appointing former Ohio Attorney General Richard Cordray to lead the Consumer Financial Protection Bureau (CFPB). "So we are left to wonder why the President is unwilling to work with Congress to adopt common-sense improvements in accountability and transparency that would protect small businesses from more job-killing regulations and red tape."

However, in 2004, while rebuking Democrats who opposed President George W. Bush's judicial appointments, Cornyn sang a different tune.

Speaking about the hotly contested judicial nominee William H. Pryor, Jr., chosen by the second President Bush to sit on the U.S. Court of Appeals for the Eleventh Circuit, the Texas Republican affirmed the constitutionality of recess appointments and urged the Senate minority to end their obstruction.

"Presidents since George Washington have made recess appointments to our federal courts, including our U.S. Supreme Court," he said. "Moreover, of the more than 300 recess appointments to the federal judiciary throughout our nation's history, the Pryor appointment is among the most justified of all because he clearly enjoys the support of a bipartisan majority of the Senate."

"Pryor would be confirmed today if a partisan minority of the Senate would end its obstruction and allow a simple up-or-down vote, as contemplated by our Constitution. It's time for the obstruction to end."

Similarly, Senate Majority Leader Harry Reid (D-NV) went 180 degrees against his prior opinion on recess appointments while Congress is still technically in session, under an archaic rule both parties use called "pro forma" sessions, or sessions merely by formality.

Reid used "pro forma" sessions to unsuccessfully block judicial nominees put forward by President George W. Bush in 2004, saying that they effectively prohibited the president from installing officials to the courts or any other offices. But with his party's president in office and Republicans driven into the Senate's minority -- the opposite of his outlook in 2004 -- Reid changed his mind.

"I support President Obama's decision," he said in a prepared statement to reporters.

Backing Reid up was an argument that he'd almost certainly have objected to in 2004, this time articulated by his allies. "[Lawyers] who advised President Bush on recess appointments wrote that the Senate cannot use sham 'pro forma' sessions to prevent the President from exercising a constitutional power," White House Communications Director Dan Pfeiffer wrote.

"In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds,” Pfeiffer added. "[Gimmicks] do not override the President’s constitutional authority to make appointments to keep the government running."

President Obama has repeatedly insisted that the Senate must end its obstruction of his choice to lead the CFPB, which was created by an act of Congress (PDF) in response to the financial calamity at the end of Bush's second term that nearly cut off the flow of credit in the U.S.

Republicans have remained steadfast in opposing his nominees, including Harvard professor Elizabeth Warren, who is now running for the U.S. Senate in Massachusetts. Their filibuster has required the president's nominees get 60 votes in the Senate, rather than a simple majority of 50. Due to the chamber's narrow partisan divide, that has proved to be impossible on many issues.

"I refuse to take 'No' for an answer," Obama said in prepared remarks obtained by The Associated Press. "I've said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them."