Pryor's recess appointment

[Bryan Wildenthal]

Please quote me the language imposing a constitutional "duty" on the Senate to advise or consent.  My copy of the Constitution gives the President the power to appoint Judges and other Officers, but only *conditioned* on the Senate's power to "advise and consent."  He can appoint, but ONLY "by and with the advice and consent of the Senate."  Art. II, sec. 2, cl. 2.

The only "duty" I see is for the President to obtain (if he can) such advice and consent to make the appointment, not for the Senate to give it.

In any event, even assuming the Senate has a duty to "advise," if their considered advice and conclusion is that they don't like the nominee, it is ludicrous to suggest they have a "duty" to consent.  Au contraire!  They have a "duty" in that case to WITHHOLD their consent!

Presidents often decline to seek any "advice" from the Senate about their appointments in any event, which certainly excuses the Senate from any generic "duty" to give it.

They have no more such "duty" as to any particular nominee than the President has a "duty" to nominate any particular person, or for that matter sign any law Congress sends him.

I'm afraid I'll have to desist from further contributions to this debate, however hard it is to resist replying.  I mean no disrespect to any further responses by ignoring them.  But I came into the office today to work, and I simply have no more time today to defend the Constitution from yet more outrages by the Bush regime.

Bryan Wildenthal
Thomas Jefferson School of Law

-----Original Message-----
From: Lawrence B. Solum [mailto:lsolum at sandiego.edu]
Sent: Saturday, February 21, 2004 4:08 PM
To: Bryan Wildenthal
Cc: conlawprof at lists.ucla.edu
Subject: RE: Pryor's recess appointment


Bryan Wildenthal writes:

>And the Senate has an absolute, unconditional, and unquestionable right to 
>BOTH (1) adopt whatever internal rules for proceeding it wants, and (2) 
>refuse its consent to any presidential nominee it wants.

I am not so sure.  The Constitution imposes a duty on the Senate to give 
advice and consent to the President. Given that the duty exists, it follows 
that if the Senate were simply to ignore Presidential requests for advice and 
consent, then the Senate would not be fulfilling its constitutional 
obligation. Similarly, the Senate's obligation would not be fulfilled by a 
systemic decision to delay action on nominations until after the President 
leaves office. Given that there is a duty to give advice and consent, it 
follow inexorably that the Senate must fulfill the duty within a reasonable 
time. Indeed, President Washington believed that the President could demand 
advice and consent at any time, summoning the Senate to his home and acting as 
the chair of the Senate when it was in executive session as his privy council. 
Binder and Smith don't actually deny any of these well-known arguments. 
Instead, they focus on a different point--the question whether the Senate 
might specify a supermajority rule for advice and consent. And perhaps it 
could. But there is no such rule. The rules that enable the filibuster are not 
supermajority confirmation rules. They are rules that permit indefinite delay 
if the filibuster is supported by 41 members of the Senate. The constitutional 
issue is whether indefinite delay can be squared with the Senate's duty to 
provide advice and consents.  The most reasonable view is that it can't.

-- 
Lawrence B. Solum
Professor of Law
School of Law
University of San Diego
5998 Alcala Park
San Diego, CA 92110-2492
USA
http://lsolum.blogspot.com
lsolum at sandiego.edu


Quoting Bryan Wildenthal <bryanw at tjsl.edu>:

> Not so.
>  
> I believe it was conceded during the earlier debate about Judge Pickering
> that Judge Gregory did not receive even a committee hearing before Clinton
> recess-appointed him, far less a committee vote, floor debate, or floor vote.
>  Gregory, of course, had the support of a majority of the Senate (and
> eventually received the support of President BUSH himself!), but that
> majority could not be expressed because Republican Senators under Clinton,
> unlike Democratic Senators under Bush, did not even have the decency to allow
> a vote.  Jesse Helms just blue-slipped him.
>  
> It is utterly irrelevant that a majority of Senators have indicated support
> for Pryor.  That is not enough to secure consent under current Senate rules. 
> And the Senate has an absolute, unconditional, and unquestionable right to
> BOTH (1) adopt whatever internal rules for proceeding it wants, and (2)
> refuse its consent to any presidential nominee it wants.
>  
> Current uses of the filibuster may be unprecedented uses of the filibuster,
> but do not implicate constitutional powers.  There is nothing unprecedented
> about the Senate refusing its consent to a nominee, including (if it so
> chooses) by simply not voting on it.  In that regard, while I think the
> Republican Senate's deep-sixing of dozens of Clinton nominees without a vote
> was outrageous, it was not unprecedented and did not undermine or subvert the
> Constitutiob by abusing a constitutional power for a purpose for which it was
> not intended.
>  
> Bryan Wildenthal
> Thomas Jefferson School of Law
>  
> 
> -----Original Message-----
> From: Eastman, John [mailto:jeastman at chapman.edu]
> Sent: Saturday, February 21, 2004 3:34 PM
> To: Bryan Wildenthal; conlawprof at lists.ucla.edu
> Subject: RE: Pryor's recess appointment
> 
> 
> 
> Roger Gregory.
> 
>  
> 
> And unlike Gregory, both Pickering and Pryor have already received the
> support of a majority of the Senate.  It is the use of the filibuster that is
> the unprecedented abuse here, not the use of the recess appointment to
> counter it.
> 
>  
> 
> John Eastman
> 
>  
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bryan Wildenthal
> Sent: Saturday, February 21, 2004 3:19 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Pryor's recess appointment
> 
>  
> 
> If that is the established understanding, it nevertheless seems plainly
> wrong.  The relevant text gives the President "power to fill ... vacancies
> that may happen during the recess of the Senate, by granting commissions
> which shall expire at the end of their next session."
> 
>  
> 
> That clearly seems to contemplate that the "recess" is something that happens
> between "sessions."  It is highly debatable whether recess appts are proper
> at all during a short weekend recess, as opposed to a recess between
> "sessions" in the sense of the annual sessions.  But if, arguendo, the recess
> appt is valid at all during such short recesses, it logically must follow
> that "session" should also then be correspondingly re-defined, to mean only
> the portion of the session that runs until the next recess, however brief.  
> At the very least, it logically follows that the appointment should expire at
> the end of the "next" Senate session following the recess, i.e., the end of
> the annual session that resumes after the brief recess.  At the latest, that
> would mean until the end of that year's session.  One could argue it should
> mean only until the next time the Senate takes a recess, however brief. 
> After all, the Senate will have had a full and fair opportunity, during the
> "session" between such brief "recesses," to act on a permanent appointment,
> IF IT WISHES.  Of course, here the Senate will not do so, because it DOES NOT
> WISH TO (at least the votes are not there under well established Senate
> rules).
> 
>  
> 
> What Bush is trying to do here, of course, is NOT fill a vacancy that needs
> filling because the Senate is out of session in the sense the Framers
> anticipated (back when Congress left town for months on end) and is truly
> unavailable to act on a permanent nomination (the obvious constitutional
> understanding and historical purpose of the clause).  Rather, he is trying to
> bypass the Senate by installing someone the Senate had a full opportunity to
> consider, who got a committee hearing and vote, and full floor debate and
> vote -- REPEATED VOTES! -- and yet refused to confirm under prevailing Senate
> rules unquestionably within the constitutional prerogative of the Senate to
> follow.
> 
>  
> 
> I have spoken at length on this list before about my strong objections to
> Bush's recess appointment of Judge Pickering in January.  I will avoid
> rehashing my views at length.  I will just observe that now, with his recess
> appointment of Judge Pryor, he has again abused the recess procedure in an
> unprecedented and outrageous manner, plainly subverting the constitutional
> design, even if (debatably and at best, technically) within the letter of the
> Constitution.  No other President in American history, so far as I am aware
> or anyone on this list has suggested, has ever before used the recess
> procedure to appoint an Article III judge whom the Senate has previously
> given full committee hearing and vote, and full floor debate and vote, and
> after all that, has REFUSED TO CONFIRM the nominee.
> 
>  
> 
> If Senate Democrats had even half the brazenness and political willpower of
> Bush and his cohorts, they would calmly retaliate against this unprecedented
> and outrageous abuse of presidential power by shutting down all further
> confirmations of Bush judicial nominees for the remainder of this term.  Let
> him appoint them all by recess if he wants to.  His claim that the Senate's
> refusal to confirm his nominees somehow violates or undermines the
> Constitution is as nonsensical as a hypothetical claim that a President's
> exercise of his veto power undermines the Constitution.  It is Bush who is
> abusing his power and subverting the design of the Constitution, even if
> (debatably, at best) he has remained within the technical letter of the law
> on this matter.
> 
>  
> 
> Bryan Wildenthal
> 
> Thomas Jefferson School of Law
> 
>  
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Matthew J. Franck
> Sent: Saturday, February 21, 2004 8:20 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Pryor's recess appointment
> 
> My thanks to Walter Dellinger for the reminder of the Federalist Society
> white paper.  It seems well-established that the New York Times and
> Washington Post are right, the Washington Times and Sen. Schumer wrong (and I
> suppose he will be even madder when he learns this).
> 
> Matt
> ***************************
> Matthew J. Franck
> Professor and Chairman
> Department of Political Science
> Radford University
> P.O. Box 6945
> Radford, VA 24142-6945
> phone 540-831-5854
> fax 540-831-6075
> e-mail mfranck at radford.edu
> www.radford.edu/~mfranck
> ***************************
> At 11:08 AM 2/21/2004, Walter Dellinger wrote:
> 
> 
> 
> The Federalist Society has a white paper that reviews the law and history of
> recess appointments and contains cites to the relevant OLC opinions on this
> issue.  The URL is http://www.fed-soc.org/pdf/recapp.pdf.
>  
>  
> -----Original Message-----
> From: Matthew J. Franck [ mailto:mfranck at radford.edu] 
> Sent: Saturday, February 21, 2004 11:00 AM
> To: conlawprof at lists.ucla.edu
> Subject: Pryor's recess appointment
> 
> This morning's New York Times and Washington Post report that Bill Pryor,
> recess-appointed to the 11th circuit yesterday, can serve (if not confirmed
> by the Senate) through the end of the 2005 session of the Senate.  The
> Washington Times reports that Pryor's appointment is only good through the
> end of the current 2004 session, which is also what Senator Schumer thinks:
> he is quoted there as saying "The only solace we have is that Mr. Pryor will
> be off the bench in ten months."  As I read Article II, section 2, clause 3,
> the NYT and WP are correct, and the WT and Schumer are incorrect.  Am I
> right?
> 
> Matt
> 
> ***************************
> Matthew J. Franck
> Professor and Chairman
> Department of Political Science
> Radford University
> P.O. Box 6945
> Radford, VA 24142-6945
> phone 540-831-5854
> fax 540-831-6075
> e-mail mfranck at radford.edu
> www.radford.edu/~mfranck
> ***************************  
> 
>