Reacting to President George Bush's recess appointment of Charles W. Pickering Sr. to a federal appeals court seat, Sen. Jon Corzine (D-N.J.) called it a "travesty" that dishonors the civil rights movement. Corzine said he is disappointed that the president would "defy the will of the Senate and the civil rights community." Actually, the Senate never had an opportunity to vote on Pickering because a minority of Democrats filibustered his nomination, and the Senate's arcane rules require 60 votes to shut off debate, which Republicans were unable to muster.
The recess appointment is constitutionally permitted (see Article II, Section 2) and has been used by Republican and Democratic presidents for political and nonpolitical reasons. Bill Clinton used it to name the controversial Bill Lann Lee to head the civil rights division of the Justice Department. Republicans were as opposed to Lee's recess appointment by Clinton as Democrats are to Pickering's recess appointment by Bush.
As Victor Williams of Catholic University's School of Law has written, "The history of recess appointments began with George Washington, who used this option to jump-start the new nation, filling posts quickly. Thomas Jefferson used his recess appointment authority to bench 10 judges. Together, the first five presidents recess-commissioned over 30 federal judges."
The Founders believed recess-appointment power was necessary because they envisaged large gaps of time between congressional sessions, and presidents would need the power to make appointments for federal posts. Oh, would those days of infrequent congressional sessions return!
There is some hypocrisy on both sides of the Senate aisle. Sen. Orrin Hatch (R-Utah) said in 1997 about the possibility of a recess appointment of Lee, "If (Clinton makes) a recess appointment, then I have to say, it's a finger in the eye of the Senate. I think you'd find there would be an awful lot of repercussions from that." President Clinton made quite a few recess appointments for controversial and non-controversial posts. President Bush has done the same.
If the Senate would stop resorting to filibusters (whether by Democrats in the matter of Pickering or Republicans in the matter of Lee), then the number of recess appointments would be greatly diminished. But don't look for that to happen as political tensions remain higher than terror alerts.
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