WHY PRESIDENT BUSH SHOULD USE RECESS APPOINTMENTS TO FILL WARTIME VACANCIES

By VICTOR WILLIAMS
Tuesday, Jan. 01, 2002

As George W. Bush nears his first year anniversary in the White House, hundreds of the nation's government's top executive and judicial offices -- many of them critical -- remain vacant. Many sub-cabinet chairs, and scores of top justice, military, court, regulatory and diplomatic posts are unstaffed.  

Why? The fault is not the President's. Rather, partisan Senate payback for Bush v. Gore is the culprit. Confirmation obstruction has become the norm. But it is the worst possible time for this kind of payback politics -- which threatens to result in serious damage to the war effort. Accordingly, the President should exercise his power to make appointments without Congressional approval, while the Senate is in recess, in order to fill these important posts.  

Empty Posts May Hurt the War Effort

One-third of the top 508 federal executive positions which require Senate confirmation are unfilled. White House press spokesman Ari Fleischer most recently described a "confirmation gap." He argued that Bush "deserves to have his team in place, particularly in a time of war," and that the American people "deserve to have their government fully staffed."

It is a compelling argument. Even front line anti-terrorism positions, such as the heads of both the Food and Drug Administration and the National Institutes of Health, remain empty due to Senate obstruction.

Nearly a hundred federal judgeships remain empty, and many more judicial retirements are expected in the coming year. Half of the Sixth Circuit appellate bench is empty, and 40 other federal judicial districts have judge vacancy emergencies. America's 275 million residents now depend on only 750 active federal judges.  

While each of the judicial vacancies is in itself a serious problem, the four vacancies on the D.C. Circuit may be most worrisome. That is because the Circuit was recently given additional national security jurisdiction by the USA Patriot Act. It should have the full complement of judges in order to carry out its new responsibilities. 

Consider this troubling fact as well: In pre-September 11 congressional testimony, federal judges in border jurisdictions confessed that they were already "outmanned" in processing illegal immigrant-related cases. With more careful immigration policing in the wake of the terrorist attacks, the situation can only get worse -- and this kind of delay will inevitably impair all of our security and safety. If anything, we need more judges -- not an understaffed, overburdened judiciary. 

Tellingly, some of the senators who have most vocally opposed President Bush's re-institution of a military tribunal option for non-citizen terrorist suspects have also obstructed the proper staffing of our federal courts. Hypocritically, these senators both claim that the federal courts should hold these trials, and refuse to provide those courts with enough judge-power that they could even arguably carry out this grave responsibility. 

Meanwhile, there is a separate but related problem: Clinton Administration political appointment "holdovers" are not being replaced. These Clinton holdovers include seven senior positions at the CIA, ten top jobs at State, and over twenty Inspectors General at various agencies and departments. The President should, and does, have the power to replace these officers with his own -- particularly in wartime, these positions should be filled by men and women chosen by him, not by a prior President of the other party.  

A Year of Confirmation Delays is Enough

Enough is enough. We have had a full year of payback politics in confirmations now -- politics conducted as if the war were not happening. With the year's end, this problem should end, too. 

Since the early summer months, the Brookings Institute's Presidential Appointments Initiative has described a "broken appointments process," while commentators across a broad political spectrum have decried a genuine "appointments crisis." After September 11, the "confirmation mess" has metastasized into a genuine national security threat.  

It was Jim Jeffords's earlier Senate defection that set the stage. Using the advantage of chairmanship and abusing the Senatorial privilege of blue-slip holds (pursuant to which a lone Senator can anonymously prevent action on a nominee), Senate Democrats attempted to hobble the Bush Administration. 

Even stellar nominations -- such as Eugene Scalia's for Labor Department Solicitor and Otto Reich's for the State Department's Western Hemisphere operation -- have been barred by Democratic Senate leadership from coming to a vote. Majority Leader Tom Daschle instituted an unprecedented 60-vote hurdle against the Scalia nomination, effectively changing the Senate's constitutional role to "advice and supermajority consent."  

And of the few appellate judges who do come to a vote, often only the most politically correct -- as cherry-picked by Senator Patrick Leahy -- move from the Judiciary Committee to the full Senate for confirmation consideration. (Clinton's recess appointment to the Fourth Circuit Court of Appeals, Roger Gregory, whom Bush allowed to stand for a tenured bench, is an example.)  

Meanwhile, Judiciary Committee bad cop Charles Schumer, who had previously demanded a left-biased ideological litmus test for judges, now uses prolonged debate over anti-terrorism measures as an excuse for additional judicial confirmation delay. And Edward Kennedy has openly acknowledged an anti-industry litmus test for nominees (such as the FDA head) coming before his Health, Education, Labor, and Pensions Committee -- as if American industry were the enemy.

Most recently, Daschle even threatened to keep the Senate in pro-forma session during the intersession holiday in an attempt to prevent recess appointments. Apparently it is not enough for Daschle to arrogate one Constitutional power -- the power to nominate and confirm -- for he wants to arrogate to the Senate the recess appointment power too, even though it properly belongs to the President, and even though full Executive power is never more important than now, in wartime. 

At least one Democratic Senator has awakened to the serious consequences of such strategies. Georgia's Zell Miller has damned the delays as both "shabby and scandalous." Miller, who has been courted by the GOP to consider switching parties, expressed "shame" that he remained "part of the caucus responsible for such conduct."  

The Constitutional Basis for Recess Appointments

Section 2 of the Constitution's Article II empowers the President to be the nation's Commander-in-Chief. It also sets forth the President's appointment authority, for both situations when the Senate is in session, and those when it is in recess.  

Now, in wartime, those two powers are linked. A fully functioning and fully-staffed national government is critical to victory, security and peace. For this reason, especially -- and also because a government with a skeleton crew is never a good idea, even in peacetime -- George W. Bush should assertively exercise his recess appointment authority to fill the posts the Democrats in the Senate have not let him fill.  

After all, the Constitution's Framers never intended that the Senate's role of "advise and consent" should be corrupted to allow what is in effect senatorial -- not Presidential -- choice of appointees. The Executive, not the Legislative Branch, holds what Alexander Hamilton described as the "sole and independent" power to ensure a fully staffed government.  

The role of the Senate is, as Hamilton stated in Federalist 66, to "ratify or reject" the choice of the executive. Imposing extreme delays or not acting on nominees at all, in order to increase senatorial power, should not be an option.  

That is why the Constitution allows recess appointments. Clause 3 of Article II, Section 2 grants the President an exclusive commissioning power that requires neither the advice nor the consent of the Senate. The Constitution's language is clear: "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." 

The U.S. Courts of Appeals of the Ninth and Second Circuits have ruled that recess-commissioned officials (judges, in those cases) possess full powers and authority. Accordingly, recess-commissioned judges and other appointees can function, for their terms, just as traditionally-confirmed ones would.  

How Recess Appointments Work

With a recess appointment, there is no nomination, committee hearing or Senate vote. The President simply signs the officer's commission, which is valid until the end of the Senate's next term. Thus, for example, an official who is recess-appointed in February 2002 would serve with full powers until December 2003.  

At that point, the President has plenary discretion to give the official a second recess commission, nominate her and have her go through the traditional confirmation process, or simply cut her lose. (In contrast, federal judges nominated and confirmed through traditional procedures serve for life without any further review by the President). Recess appointees often secure easy confirmation if subsequently nominated.

A History of Recess Appointments by Both Parties

Democrats may paint recess appointments as an illegitimate technique, but in fact it is a strategy used frequently by Presidents, and one with a long and honorable history. It is worth remembering that Augustus Hand, Thurgood Marshall, Bill Brennan, and Earl Warren rose to the bench by recess appointment.  

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 ten judges. Together, the first five Presidents recess commissioned over thirty federal judges.

And Theodore Roosevelt similarly used the alternative appointment process aggressively, for both executive and judicial appointments. He liberally construed the notion of a Senate intrasession recess and frequently used the plenary power to respond to a bullying or sleeping Senate. 

In 1949, Harry Truman used a recess appointment to place the first African-American, William Hastie, on the federal appellate bench. In the 1960's, John F. Kennedy, who also sought civil rights progress, recess-commissioned 22 percent of his judges. Each temporary jurist subsequently earned a tenured bench.  

George Bush should continue the long and honorable history of recess appointments by using his Constitutional recess appointment authority to fill as many vacant executive and judicial positions as possible. A good target date might be the one-year anniversary date of the President's oath to faithfully execute the laws, and the duties of his office -- January 20, 2002.  

Though the Senate has so far stopped the President from fulfilling his duty to fully staff the government, they cannot stop him forever. It is time for our President, and Commander-in-Chief, to act, and act expeditiously.


Victor Williams, a FindLaw contributor, teaches at the Catholic University of America's School of Law in Washington,D.C., where he is also Director of the Lawyering Skills Program. He holds a J.D. from the University of California—Hastings and LL.M. from the Columbia University Law School.

Ads by FindLaw