JURIST Guest Columnist Victor Williams, clinical assistant professor at Catholic University of America School of Law and a practicing attorney in Washington, D.C. says that the debate over Ben Bernanke's potential reappointment as Chairman of the Federal Reserve is illustrative of a broken Senate confirmation process in which nominee defamation and floor vote delay are commonplace....
he raging debate over the Federal Reserve Chair’s reappointment would make a fun thought exercise for a Law and Economics class: “Make the Case that Ben Bernanke be reappointed as Chair of the Federal Reserve Board of Governors.”
If it were an open resource exercise, students could have easily found material for their answer with a Google search revealing the transcript of President Obama’s announcement of Bernanke’s nomination.
When Barack Obama interrupted his well-earned Martha’s Vineyard summer vacation in August 2009, he made the case for his selection of Bernanke. Obama explained that Bernanke, a scholar of the Great Depression during his tenure in academia, had helped save the nation from entering another such historic economic calamity.
Inside the island’s Oak Bluffs Elementary School, Bernanke was standing by Obama’s side, as the president recited how the Fed Chair had saved “a financial system on the verge of collapse with calm and wisdom, with bold action and out-of-the-box thinking that has helped put the brakes on our economic free fall." The president gave extra credit to the Fed Chair for “bold, persistent experimentation [that] has brought our economy back from the brink."
Acting on a law professor’s instinct, Obama summarized his argument for the reappointment in a simple four-part test: Bernanke was being reappointed “because of his background, his temperament, his courage, and his creativity.” It is five months later and the four-part test still proves true. But, now we are just days away from the January 31 expiration of his appointment. With the additional resource of the fulsome analysis of Ben Bernanke provided by Time Magazine’s 2009 Person of the Year issue, the exercise could be quickly completed by detailing each of the four criteria.
Of course the Fed chief has made a few missteps, but that just means he’s human. Some critics say he did too much; others say too little. But, have no doubt, he was exactly the right person to calmly and creatively lead the Fed during the worst financial crisis that the nation has faced in the last seventy years. And, he is exactly the right person to finish the job of unwinding his creative economic interventions as the nation’s economy slowly improves.
According to his own speech at the Oak Bluffs Elementary School, Bernanke is fully committed to continuing to “promote growth and prosperity” while maintaining “an environment of price stability.” Ben Bernanke knows well from his South Carolina roots the generational tragedy of job losses. Dr. Bernanke well knows his economic history regarding how inflation can quickly burn out of control. He will strike the right balance.
But for full credit, the exercise answer should perhaps break the rules and challenge the completeness of the question. The raging debate over Bernanke’s reappointment is also about the broken Senate confirmation process wherein nominee defamation and floor vote delay are commonplace. Most troubling is the increasing occurrence of individual senators placing procedural holds – a type of mini-filibuster – against a nomination which requires a 60 vote cloture process.
This Senate rule requirement of a 60-vote confirmation process runs counter to the Constitution’s Article II, Section 2 design according to which the president nominates and the Senate is limited to ratifying or rejecting the choice by a simple majority vote. Many thoughtful people both inside and outside the Republic’s upper chamber are asking that this rule be changed. When the rule change was fully debated in 2005, it was misnamed the ‘Nuclear Option,” but it would have been better branded as the “Constitutional Option.”
In hindsight, perhaps President Obama, while at the Oak Bluffs Elementary School last August, should have taken advantage of recess. Our founders wisely provided an alternative process for federal appointments. Clause 3 of Article II, Section 2 states that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." Alexander Hamilton explained in Federalist No. 67 that this “auxiliary method of appointment” was needed for those vacancies “which it might be necessary for the public service to fill without delay."
As President Obama considers the 300 other federal executive, regulatory, and judicial vacancies, this might be an answer worth considering. The two law professor nominees whose DOJ jobs will be to establish legal policy and help pick federal judges (Dawn Johnsen for OLC and Christopher Schroeder for OLP) have been blocked by partisan Senate obstruction for months. It is past time to call recess.
As open book exercise answers are usually limited in word count, however, there may not be enough space to detail the validity, history, and practicality of the recess commissioning process. Victor Williams is a clinical assistant professor at Catholic University of America School of Law and an attorney in Washington, D.C. He teaches Law and Economics and Lawyering Skills.