WEEK IN REVIEW: WASHINGTON, D.C.

Sunday, Nov. 25, 2007 | 1:50 a.m.

WASHINGTON - Nevadans may not be paying much attention to what's happening with Senate Majority Leader Harry Reid's unprecedented decision to keep the Senate in pro-forma sessions during the holiday break.

But they should.

Reid's move will ensure President Bush cannot make unilateral appointments to the Nuclear Regulatory Commission, the agency that will be making important decisions next year on the fate of Yucca Mountain.

The five-member commission that oversees nuclear plants is supposed to be made up of both Democratic and Republican nominees. But Bush and Senate Democrats are at a standstill over more than 100 executive nominations. Bush had signaled he would simply appoint his choices while the Senate was away.

Recess appointments are nothing new - historians tell us that George Washington made the first recess appointment in 1791, when he put Thomas Johnson on the Supreme Court.

Associate Senate Historian Don Ritchie explains recess appointments began as a way to keep the government functioning during an era when Congress met for only part of the year. An appointment by a president during a Congressional recess expires at the end of the session - which in the current situation would be through the Bush presidency - unless the appointment is confirmed by Congress when it returns from its recess.

President Eisenhower appointed three Supreme Court justices during Congressional recesses - Earl Warren, William J. Brennan Jr. and Potter Stewart. They went on to hear cases before their credentials were reviewed by the Senate, a development that led senators to believe the process was "defective," according to a congressional report. Congress ended up confirming the justices.

Recess appointments have increasingly become an expression of the bad relations between the executive and legislative branches.

Nominees have been refused over the years, and both parties have held up appointments to extract concessions from the White House on other issues.

Tensions over recess appointments mounted during the Reagan and Clinton administrations, and when Bush appointed former U.N. ambassador John Bolton in 2005. Reid and the White House reached a truce during the recent August break, with the administration agreeing to make no recess appointments in exchange for Reid's promise that the Senate would move swiftly to act on them upon their return.

Not so this holiday period.

"It doesn't seem to be working right now," Ritchie said. "The Senate doesn't really trust the White House to honor that kind of arrangement."

Nationally, concerns have been raised that Bush would install his choice for surgeon general. But the problem is also logistical: Democrats lose the ability to cut deals with the president when he makes unilateral appointments during a recess.

Reid has recommended to Bush that he nominate two individuals for the Nuclear Regulatory Commission - suggestions that Reid's office says are being held up by the White House.

The commission has two vacant positions, one Democratic and one Republican. Additionally, the term of another Democrat, former Reid nuclear science advisor Gregory B. Jaczko, is expiring.

Reid's office wants Bush to fill both the Republican and Democratic seats on the commission. "This isn't just concern about (Bush's) nominees, it's about making sure Democratic nominees are also moving forward," Reid spokesman Jon Summers said.

Reid's concern is that Bush could appoint his Republican choice for the commission during a recess without filling the Democratic seat, and the Senate would not be in session to object.

The appointment is critical because the Nuclear Regulatory Commission is expected to decide next year whether to accept the Energy Department's application to license the nuclear waste repository at Yucca Mountain.

Republicans have been inclined to support Yucca Mountain. In the past, many Democrats have also favored the dump; however, the party's presidential nominees now all oppose it.

The license review will be a critical stage for the long-fought repository, which polls show most Nevadans oppose. If the application is accepted, the commission will begin a multi-year review of the project to decide whether the waste dump could be licensed, a prerequisite to construction.

"There's a Nevada interest at stake here," Summers said.

And so every few days over the next week, a senator will be tasked with coming to the chamber to formally open and close the day's business - all in a matter of seconds.

Even though the Senate has held pro-forma sessions in the past, Ritchie said this is the first time a Senate Majority Leader has kept the chamber in session solely to prevent presidential appointments.

Republicans grumbled over the tactic. A spokesman for the minority leader, Sen. Mitch McConnell of Kentucky, said Democrats would get as much done in the pro-forma "as they have all month - nothing."