Pickering's recess appointment

Posted: Jan 20, 2004 12:00 AM

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.

Bush's naming of Pickering to the federal bench was the first time since President Jimmy Carter that a recess-appointment procedure has been used to appoint someone to an Article III judgeship, according to the Congressional Research service, an arm of the Library of Congress. The action by the president escalates to new levels the battle for control of the federal judiciary, which both liberals and conservatives see as the main source of power in an age when congressional power has been weakened and the courts have increasingly legislated from the bench.

Liberal Democrats, who have used the courts to impose policies and an ideology on the country they know would never make it through Congress (and if it did, it might cost legislators reelection), are now in a panic because they who have lived by the courts may be about to die by the courts as more judges who believe in the "original intent" of the Founders make it to influential benches.

The Pickering appointment is good only until the end of this Congress. But just the fact that President Bush would follow through and name Pickering after criticizing the Senate for its preoccupation with politics is an indication Bush feels increasingly confident about his political strength and his ability to stand up to the Democratic leadership and its civil rights lobby.

Pickering was unfairly smeared as a racist for simply following the law in a civil rights case liberals thought should have turned out differently, and for a 40-year-old article he wrote defending Mississippi's anti-miscegenation laws, when the state was a different place and Pickering was a different person. This disagreement should not have been enough to deny a highly qualified judge the federal bench. Thanks to President Bush, Pickering has the job, at least for most of this year. If the Senate doesn't confirm him - it seems unlikely that it will - he will have to leave the bench.

The president should use the Pickering case and the reshaping of the judiciary (not to mention his need for more Republican senators) as central parts of his reelection campaign.