Tuesday, June 21, 2005
Senate Majority Leader Bill Frist said that John Bolton's nomination has hit a "dead-end" in the Senate. Frist (who barely put up a fight against the Democratic leadership) said there are no more scheduled votes on Bolton. Now that Bolton's campaign has been "exhausted" in the Senate, President Bush may make a recess appointment while Congress is on break for Independence Day.
Senate Democratic Leader Harry Reid had this to say about the President's option to make a recess appointment, "The president will have to make a decision whether he wants to send this flawed candidate to the United Nations under an also questionable constitutional measure, which is being tested in the courts as we speak"
The "questionable constitutional measure" is actually in Article II, Section 2, Clause 3 of the Constitution which says that "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."
According to the American Constitution Society, "The first recess appointment to the court occurred in 1795 when President Washington appointed John Rutledge chief justice while the Senate was in recess. Since then, 11 Supreme Court justices have been appointed in while Congress was in recess, including Chief Justice Earl Warren, appointed by President Eisenhower in 1953." ("The Debate Over Recess Appointments", Nov 20, 2004)
The challenge in the courts that Reid speaks of comes from his very own colleague, the liberal bulwark, Ted Kennedy. However, according to The Hill, Kennedy's lawsuit was more of a political ploy than a principled stand. He pursued a lawsuit in order to block President Bush's recess appointment of William Pryor to the federal bench, last year. His argument was that recess appointments could be made at only a few times, not every time, that Congress is out of session."Kennedy eyes suit on Pryor"
In conclusion, there is no clear-cut evidence in the "recess appointment clause" that the president may make such appointments during few certain senate recesses instead of all of them. The constitution does not explicitly state that a recess must last a certain length of time. A recess by any other name is a recess.