Avoiding constitutional wrongs
12/31/2001 12:00:00 AM - David Limbaugh
Senate Democrats have been shamelessly wrong to block President Bush's Labor and State appointments for crass political reasons. President Bush is considering recess appointments to bypass the Senate. He should not. Two constitutional wrongs don't make a right.
The Constitution vests the president with the power to make these appointments, subject to the Advice and Consent of the Senate. President Bush has nominated Eugene Scalia for Labor Department solicitor and Otto Reich for secretary of Western Hemisphere affairs.
Senate Majority Leader Daschle is refusing to hold a floor vote on the confirmations of these two highly qualified nominees. Scalia has stellar legal credentials, but happens to be the offspring of Democrat nemesis Supreme Court Justice Antonin Scalia (who was among the majority of the Court that finally ended Al Gore's unquenchable quest to hijack the 2000 presidential election).
This was an unpardonable "sin of the father" and one that the Democratic Leadership apparently intends to avenge through Scalia's successive generations. Oh, yes, and son Scalia has independently earned the ire of union-sycophant liberals by announcing his opposition to President Clinton's workplace ergonomics regulations – regulations, by the way, that were rejected by the Senate.
I'm not aware of any generationally disqualifying sins of State nominee Otto Reich, but he has done plenty in his own right to incur the eternal wrath of the left. From 1983 to 1986, Reich was in charge of the State Department's one-time Office of Public Diplomacy for Latin America and the Caribbean. The office was accused of operating an illegal, covert domestic-propaganda effort on behalf of Nicaragua's Contras and against the Sandanista government.
Reich has denied any wrongdoing, and none has been proven, but the nature of the charge is so damnable to the left that evidence is of little concern. Imagine using propaganda against a communist regime! Imagine supporting the freedom fighters against their oppressors along with the evil Ronald Reagan!
The nominees need only a simple, 51-vote majority to be confirmed, but 60 to end a filibuster designed to block a vote. Scalia has the 51 votes with 49 Republicans, Jim Jeffords (who voted him out of committee) and Vice President Cheney's tie-breaking vote. Reich has not even been accorded the dignity of a hearing from the Senate Foreign Relations Committee, which must approve his nomination before the Senate considers it.
Now we get to the sticky part. President Bush is being urged to sidestep the Senate's Advice and Consent powers by making recess appointments for the two nominees. The Constitution authorizes the president to fill vacancies "that may happen during the Recess of the Senate" that expire at the close of the following congressional session.
You may recall that conservatives were outraged when President Clinton tried to use the recess appointment clause to circumvent the Senate's rejection of Bill Lann Lee to head the Justice Department's Civil Rights Division. Republicans had properly blocked his appointment because of his scarcely hidden unwillingness to abide by the Supreme Court's rulings on racial preferences (he planned to invoke quotas in employment and contract cases.) Note that the Republicans' concern was not that Lee had different political views or that he might advocate certain positions. It was that he wouldn't follow existing United States Supreme Court decisions.
Democrats oppose Scalia because he doesn't agree with them, not because he won't follow the law. The law on ergonomics rules is consistent with Scalia's position, but I dare say that Scalia would follow the law as solicitor, even if it weren't to his liking.
Republicans, with the help of Democratic Senator Byrd, dissuaded President Clinton from improperly using the recess appointment clause, because it is to be used only in emergencies. The wily Clinton used another unlawful trick to get around the Constitution. Through Attorney General Reno, Clinton appointed Lee to serve as acting deputy of the Civil Rights Division.
As wrong as Senate Democrats are in blocking Bush's appointments and as tempting as it may be for him to fight fire with fire by resorting to some technical device to install his nominees over the objection of the Senate, he must not succumb.
The president's remedy for the Democrats' behavior is to take his case to the American people, pointing out the Democrat's continued partisan obstruction. Make them accountable at the ballot box. But to avoid flagrant hypocrisy and complicity in damaging the Constitution and rule of law a la former President Clinton, President Bush should not use the recess appointment clause in these cases.