A little while ago, facing almost certain defeat in the US Senate Foreign Relations Committee, GWB pulled the nomination of Sam Fox as Ambassador to Belgium. This backtrack was especially sweet for Sen. John Kerry (D-MA), Dubya's opponent in 2004, because Fox was one of the biggest contributors to the so-called "Swift Boat" campaign that libeled Kerry's standing as a genuine hero of the Vietnam war and effectively derailed his momentum.
This past Wednesday, though, Bush decided to use his "recess appointment" power, while the Senate was on its Easter and Passover break, and filled in the office anyway. While this happened a few days ago, I want to comment on it because this I think is stretching the intent of the Founding Fathers to the nth degree -- not as if Bush hasn't done that already with his "signing statements" and the Gitmo gulag.
It may be true that such appointments can be made if there is a deadlock or filibuster in the Senate. But the original meaning, as I see it, was to fill in vacancies in case of a death or resignation during a recess; or to put in a worthy person if the full Senate was obstructing for purely partisan reasons, to prove they were up to the task at hand. (Actually, the Constitution doesn't even mention committees -- they were created by Congress shortly after its first sitting in 1789 only because the workload was already getting overbearing.)
Perhaps the most famous example of a recess appointment is when Eisenhower picked Earl Warren as Chief Justice of the US, rather than promoting one of the sitting associate justices when Fred Vinson died from a heart attack. Eisenhower later regretted the appointment (confirmed by the Senate when Warren's "recess term" expired) as well as that of Bill Brennan, but at the time it proved to be genius.
It not only got rid of a potential rival to the White House, as Warren was Governor of California and leader of the party's liberal wing (a role now assumed by Arnold Schwarzenegger) but Warren was able to break the deadlock on the school segregation cases; turning what would have been a narrow 5-4 judgment to a 9-0 slam dunk, effectively forcing Eisenhower's hand on the issue of civil rights.
But Fox is no Warren. It's not just the issue of patronage that makes the appointment of Fox stink like sulphur. It's the possibility it might be illegal in its entirely. Mary Ann Akers of WaPo suggested the other day that federal law prohibits someone from volunteering in a government job if the job has a fixed salary, such as ambassadorships; even if the appointee offers to serve in the post voluntarily. One could probably get around this technicality by donating any paycheques to charity -- that might have been how John Bolton was able to serve as UN Ambassador. The problem, though is that Fox gets use of the Ambassador's residence as well as an expense account which comes with the package.
Setting aside the legality of it, it's just morally wrong. How can a President declare defeat by pulling a nomination, then ram that appointment through the backdoor while Senators mark one of the most solemn parts of the Jewish and Christian religious calendars? This isn't just a flip-flop, it's a flip-flop-flip. There should be a principle that when a nomination is pulled, it is pulled until the next Congressional election at the very earliest. Or, if Bush was going to put in Fox all along, he should have demanded a vote on the full Senate floor no matter what the committee was going to recommend.
The Senate would have been duty bound to vote on it, just as it did 20 years ago on the ill-fated appointment of Bork. I don't think it was a given that the full Senate would have filibustered Fox -- after all, Swift Boat was three years ago and even Kerry himself said he's moved on. But if it did, then and only then would Bush have had a leg to stand on. This time, while it may be technically legal albeit from a radical interpretation of law, it's certainly not what Washington and Madison and Jefferson would have wanted.
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2 comments:
Bush has consistently used recess appointments in cases where it was obvious that his nominee wouldn’t be approved, thereby stickhandling around the oversight the approval process is intended to provide. His appointment of John Bolton as U.N. Ambassador is a good example of this. In the past, Clinton used a recess appointment to make James Hormel ambassador to Luxembourg. Hormel easily had the support of two-thirds of the Senate, but Senator James Inhofe blocked the nomination due to the fact that Hormel was openly gay, and Senate Majority Leader Trent Lott let him do it. Clinton therefore appointed Hormel via a recess appointment in the best possible tradition -- because Hormel would have been confirmed if Inhofe hadn't blocked the vote.
By the way, I watched C-SPAN when Kerry was questioning Fox and it was a thing of beauty. Kerry absolutely raked this douchebag over the coals about his involvement with the SBVFT. More of a weasel than a fox, I’d say.
Good points, RT. Of course, pretty much every President has used the power -- not always for good reasons but more often than not. The fact Bush has used it so often is not just circumventing the process, it makes a joke of the "advice and consent" power.
Some have suggested that Tony Blair has acted more like a President than the Queen's chief servant. I would venture to say that Bush has not just behaved like a PM but a King outright -- and I thought there was a revolution because one King was insane and his PM was inept.
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