Bolton Appointed
The Associated Press and other outlets report that President Bush will recess-appoint John Bolton as Ambassador to the United Nations this morning. Bolton becomes the first American ambassador in the history of the organization to serve without the endorsement of the Senate.
I will have more on this soon enough, but let me just say first that I have not a single regret about my efforts in opposition to this ill-chosen nomination. I believed from the outset, and continue to believe, that America deserves better than John Bolton as our representative at the United Nations.
[Update: CNN says the official announcement will come at 10 a.m. -- 9:50 a.m.]
[Update: The deed is done. Bush, citing Bolton's "vast experience, integrity, and willingness to confront difficult problems head on," announced the recess appointment. He said that Bolton will "insist upon results" at the United Nations, and blamed Bolton's non-endorsement by the Senate on the "partisan delaying tactics of a handful of senators." That's one big hand, to hold 43 Senators, including several Republicans. I'll post a link to the full statement when available.
Bolton spoke briefly, calling himself "profoundly honored, indeed humbled," and said that he will "work tirelessly to carry out the initiatives that you and Secretary Rice direct." Signs of a tight leash, at least.
More later. -- 10:12 a.m.]
[Update: The statements from Bush and Bolton are here. Senator Voinovich, the most vocal elected Republican opponent of the Bolton nomination, told the AP "I am truly concerned that a recess appointment will only add to John Bolton's baggage and his lack of credibility with the United Nations."
I concur. -- 11:02 a.m.]
[Update: Stygius has two good posts (here and here) over at The Washington Note on the morning's events. -- 11:40 a.m. Dennis at TMR has a good one as well. -- 1:48 p.m.]
posted by JBD @ 9:09 AM
7 comments
7 Comments:
On one level, I'm not surprised, after the Dem filibuster. I know you've argued before here that it isn't a filibuster, but it seems to me that there is a fine line between holding up a vote while the release of certain documents is pending, and holding up a vote by extending debate indefinitely until certain documents are released, even after it's been made clear that those documents will not be released. With a Supreme Court vacancy to be filled, and Dems already making demands on documentation, the message the White House is sending to Harry and Co. is blindingly clear: if you do to Roberts what you did to Bolton, you're going to wake up one morning and discover you've been bypassed.
It is not a gentlemanly thing for Bush to do, and it's certainly a worrying situation if it becomes routine. But procedurally, it's fair game. Personally, I'm almost surprised that we didn't wake up after the Senate recess to discover Mr. Justice Robert Bork's recess appointment.
On another level, though, I'm actually surprised that GWB has gone down this road so soon. I had anticipated that he wouldn't start playing this kind of hardball until the "at the end of their next session" clause placed the expiry of appointments in January '07, after the midterms.
I have also opposed Bolton's nomination and I appreciate your opposition as well. I posted something on this nomination titled: "Bolton recess appointment by Bush has merit" with a humerous tone to the posting.
We did our best in opposing this appointment and I for one feel proud that we did. Time will show that we were correct.
Simon - this appointment will last through January, 2007; it's through the beginning of the next Congress.
Jeremy,
The caffeine just isn't kicking in here this morning - you're right.
I had to go back and check the text more specifically, but something strikes me as being a little off here. The clause (Art.II §2 Cl.3) says:
The President shall have the 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".
What's making me uncomfortable is that word "session". In current usage, of course, each Congress is comprised of two sessions - hence why the Senate's website divides votes for each Congress into first and second sessions. Thus a modern reading of the clause, as you point out, effectively means that a recess appointment can span an entire Congress - two years!
I can't support this feeling without doing a little more research, but this seems contrary to the intent of the Framers, insofar as it dramatically increases the power of the Executive. A modern reading of the clause effectively says that a President may ignore the second Senate of his Presidency. I say "a modern reading", of course, but I am an originalist; I do not accept that the Constitution's meaning necessarily evolves with our language. It means today what it meant when it was adopted. That constitutional knife is double-sided - and damned sharp! We need an essay on the original understanding of the recess clause; I will not try to write it here, but I will offer an outline of what it might contain.
In earlier times, state legislatures and the Continental Congress were not in session throughout the year, due to (I suspect) a combination of a paucity of business and (particularly in the case of the Continental Congress, the sheer physical demands of assembling the body in one place for any period of time. IIRC, during (and for a long time after) the revolutionary war, the Continental Congress was homeless and nomadic, further hampering the business of assembling it and transacting business.
The Framers must have been aware of these concerns, and the chaos they brought to any attempt at national government. They included in the Constitution the explicit instruction that there would be a single, official seat of government, possibly to remedy the second point I raised above. But they also included a clause that said that when Congress was not readily available to debate and confirm (or deny) executive appointments, the President should have the authority to fill those vacancies in the interim. It stands to reason that there was a strong presumption that an office which is necessary is an office which should be filled. The mechanism, it seems to me, was foreseen to operate thusly: if the Congress wasn't in session, the President makes a recess appointment. Once Congress returns, it either votes to sustain that appointment, thus making it official - or it does not, the President therefore nominates someone else, and the process repeats until Senate confirmation. At midnight on the day following the end of the session of Congress, the person in the office filled by recess appointment will be a person who has been confirmed by Congress.
So that's a very, very ad hoc description of how I think the clause might have originated, and how that system would therefore have been understood to operate. I would want to do a lot more reasearch before saying any of this definitively, specifically, into actual pre-1787 American legislative practise, with a particular focus on the Continental Congress and post-1776 state constitutional practise, and also look at the first hundred years of the recess appointment's use, just to start with. However, with those qualifications in mind, it seems to me that we need to discard our current understanding of "sessions" of Congress. It seems to me that the President can ONLY use the recess power when the Congress is not in session; therefore, in any situation where the President has the power to fill a vacancy via recess power, the Congress' SESSION has ended. In other words, the meaning of "session" in the legislative calendar should not necessarily be seen as the same thing as a §2 Cl.3 session. Put more bluntly: if the President has the power to make a recess appointment during a weekend, the appointment expires at 11:59:59 the following Friday.
Simon - I agree, a "true originalist" stance would seem to preclude this action. I just came across this article that I thought you might be interested in ... the author makes the argument that you were hinting at, along with the other one that I've made before (i.e. that recess appointments can only be made to fill vacancies occurring during that recess).
Awesome - it turns out that there IS an originalist essay on that clause! Thanks for finding that, I skimmed and I'm reading it now. I might e-mail the author and tell him to push it out there, as it seems timely.
"He who lives by the ipse dixit dies by the ipse dixit", as Scalia once wrote (n1); although originalism is too often castigated as an excuse for conservatism, in my view - admittedly, not an unbiased one - it is no such thing. The fact that an originalist reading of the constitution militated against the nuclear option, and seems to militate against the ongoing abuse of the recess appointment power (n2), should perhaps indicate how false this conflation is.
~sjd
n1. 487 U.S. at 726
n2. I say ongoing, because President Clinton used it 140 times; see Henry B. Hogue, CRS Report for Congress: Recess Appointments: Frequently Asked Questions
Its been going on since (I believe) the 1820's but its use has risen in recent times with greater partisanship.
Query for "original construction" types like Clarence Thomas: (assuming we could overcome standing issues and find someone with a "right" to sue over the appointment - let's pretend a Democrat Congress) how would a right-thinking, original constructionist rule in such a dispute? Do we go with the clear but different original intent? Or concede the the constitution, despite being written, is much like its British predecessor - accruing and changing with actual practices?
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