Constitutional wrongs, Part 2

Posted: Jan 02, 2002 12:00 AM
In my last column, I wrote that President Bush should not use the Constitution¹s recess appointment clause to install two nominees on which the Democratic Senate refuses to permit a vote. Though most conservatives apparently disagree, I stand by my position. President Bush appointed Eugene Scalia to be the Labor Department¹s chief lawyer and Otto Reich as an Assistant Secretary of State. Both are inarguably qualified and have the necessary votes, but Democratic senators are using parliamentary tricks to prevent a vote on both. President Bush is considering using a clause in the Constitution that permits the appointment of public officers when the Senate is in recess. I contended that the president should not use that device (as Clinton attempted to do and later did) because the clause was not intended for that purpose. I anticipated some disagreement with my position among conservatives, but not to the extent indicated by my e-mails. And, the Wall Street Journal editorial board agrees with the e-mailers. Many of the e-mailers essentially said that I was naïve -- that when you are fighting a guerrilla war, you have to adopt guerrilla tactics. Plus, some said, the Constitution (SET ITAL) does (END ITAL) permit these recess appointments. Others added that the framers intended to allow a minority of senators (through filibuster) to block the president¹s confirmation as a check on his power. The recess appointment clause, they said, merely allows the president to overcome that check. The Journal editors were cleverer in their reasoning. While tacitly conceding the distastefulness of the recess option, they argued that the Democratic leadership, while refusing to allow the majority to act, was abdicating its constitutional duty to advise and consent. This, they seem to view as sort of a de facto recess. "The Constitution," they wrote, "allowed recess appointments in anticipation of a Senate that would abuse its confirmation powers." But I say to both e-mailers and the Journal that there¹s no evidence that the framers anticipated the use of filibusters in this situation whereby a minority of senators could block the will of the majority. The Senate¹s Advise and Consent power, not the abusive filibuster, is the check the framers incorporated into the Constitution. The recess clause was designed for a genuine emergency, not to circumvent a cavalier and recalcitrant Senate. Conservatives are justifiably frustrated and outraged at the tactics continually employed by Democratic leaders. They are also correct that in the world of power politics, nice guys often finish last. But I¹m not suggesting that Republicans shouldn¹t fight back. Indeed they must, so long as they don¹t join the Democratic leaders in their gutter of lawlessness. This has to be where they draw the line. And it is flouting the rule of law to violate the spirit, if not the letter of the law. It is true that Republicans have been notoriously inept at political street fighting, mostly because they have never figured out a way to respond effectively to the Democrats¹ relentless propaganda machine. Clinton bloodied their noses so many times that they largely gave up the fight. Therefore, many have concluded that you can¹t counter the Democrats¹ obstruction unless you break the rules right along with them. That¹s possibly true, if you are focused more on short-term battles than the protracted war. In playing by the rules, Republicans may not secure Scalia and Reich¹s confirmations, but in bending them they will undermine a major reason for their existence, i.e., the fierce advocacy of constitutional principles and the rule of law. If you are too cynical for this approach, then consider a pragmatic reason for not succumbing to Clintonism. As we speak, Senate Majority leader Daschle is committing far worse and more damaging acts than neutralizing the president¹s appointment power. He is willfully using his power to prevent Senate action on such important matters as the economic stimulus bill and the ANWR drilling measure, both of which have a clear majority of support. Daschle had the audacity (and dishonesty) to say that on "controversial issues, the Founding Fathers said that it ought to take a supermajority to pass." Note that Republicans don¹t have any slick constitutional maneuvers to overcome this even greater abuse of the Democrats. Their only choices are to capitulate to the Democrats¹ bills or to take their case to the voters. When they take their case to the voters, it would be helpful if they could legitimately claim the moral and constitutional high ground as they expose Daschle and company for their unconscionable abuses of the legislative process. But if they have abused the recess clause themselves, they will have forfeited their moral authority. What an astounding shame it would be if Republicans finally yielded to Clinton relativism and cynicism and established the principle that henceforth Clinton¹s approach will be the norm, rather than a shameful exception.