Few of the political fights of the Bush presidency have been as annoying as the one over the White House drive to stack the courts with conservative judges.
After years of seeing dozens of Clinton judicial nominees denied even a single hearing in Orrin Hatch’s Judiciary Committee, it’s hard to feel sorry for Republicans when Senate Democrats successfully block four of Bush’s 172 judicial nominees. The GOP reactions to the Dems’ backbone, however, are particularly irritating.
First, there was the useless 39-hour marathon session of the Senate last fall, in which lawmakers pontificated endlessly about the fate of these four right-wing nominees.
Then, Sens. Lindsey Graham (R-S.C.) and Saxby Chambliss (R-Ga.) decided to ratchet things up a bit, announcing in November that they were planning to file a lawsuit against the U.S. Senate (yes, the entire institution) to try and get the courts to overrule the use of filibusters in blocking judicial nominees.
Bush took matters into his own hands recently with two “recess appointments” in successive months for his two most extremist judicial nominees — Charles Pickering and Bill Pryor. It was, to be sure, an unprecedented step; no other president has ever circumvented the Senate to appoint controversial judges to the federal bench before.
These appointments have apparently pushed Ted Kennedy to his limit. According to a report in The Hill, Kennedy has “asked his staff to put together a case that he hopes will prove that President Bush’s recess appointment of Alabama Attorney General William Pryor to the U.S. Court of Appeals was unconstitutional.”
At issue is whether the 10-day period when Congress was away constituted a “recess” in which such appointments are provided for in the Constitution.
Some constitutional scholars believe that the Founding Fathers may have been referring to the far lengthier recess periods that occur between sessions and Congresses. Recesses lasting many months were common in the early days of the Republic, before the advent of mid-session breaks….
The president’s authority to make recess appointments has never been litigated, although Republican and Democratic presidents have made frequent use of the power over the years.
“I think there are very substantive questions to the legality,” Kennedy told The Hill.
My first concern is one over separation of powers. The reason the Graham/Chambliss suit is silly is because it asks the federal court to decide on the legality on a self-imposed rule created by senators for the Senate. If the “separation of powers” means anything, it means that it’s impossible for the judiciary to tell the Senate how it can conduct its legislative affairs.
The potential Kennedy suit strikes me as far less problematic in this regard. Yes, the conflict is between the executive and the judicial over the president’s powers, but there’s an additional question about the meaning and appropriate interpretation of a constitutional principle — the ability of presidents to make appointments during a recess.
Article II, Sec. 2, of the Constitution says, “The 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.”
But what, exactly, is “the recess”? (Notice the phrase “the recess,” as opposed to “a recess,” suggesting that the Constitution is referring to a specific lengthy departure for lawmakers, such the one following the end-of-term adjournment.) And wasn’t this provision included so that presidents could make appointments in emergencies when the Senate wasn’t around, not to circumvent the legislative process when the president is irritated with the Senate minority?
The Hill noted that history has offered varying interpretations.
In 1901, Attorney General Philander Knox advised President Theodore Roosevelt that a recess constituted the “period following the final adjournment for the session,” adding, “Any intermediate temporary adjournment is not such a recess, although it may be a recess in the general and ordinary use of that term.”
Later Justice Department rulings significantly expanded the definition of a recess, first to breaks lasting at least a month, then those lasting two weeks.
In 1921, the Justice Department argued that there was “no lower time limit” on the length of a recess. Under the Constitution, no chamber may recess for more than three days without the consent of the other body, prompting the Justice Department to rule that weekend breaks would not constitute a recess.
In fact, this constitutional ambiguity has been lingering for a while now, without a conclusion from the courts.
The Senate’s legal counsel prepared a brief opposing the president’s authority to make recess appointments after President George H.W. Bush made a recess appointment to the Board of Governors of the Postal Service two weeks before leaving office. Former Majority Leader Sen. George Mitchell (D-Maine) introduced the brief into the Congressional Record, even though Republicans blocked a resolution to have the Senate file a friend of the court brief in a case in the U.S. District Court for the District of Columbia. That case was decided on other grounds before the constitutionality of recess appointments ever came up.
The brief noted the importance of the Senate’s “advise and consent” role, as well as the Framers’ “determination” to divide the authority to appoint officeholders.
I’m not exactly sure how Kennedy would have standing in this case, but I sincerely hope he moves forward with this challenge. I’ll keep you posted.