Pryor's recess appointment

Malla Pollack mpollack at law.uoregon.edu
Sat Feb 21 16:34:34 PST 2004


Larry's point may be strong to those who think that the words of the
Constitution should be read according to the intent of the Drafters (many of
whom had legal training in picking nits).  To those who agree with Justice
Story that the Constitution should be read according to the common
understanding of the general public, the argument is not good..  Any one who
remembers common sense from before law school has no doubt that by delaying
a confirmation vote the Senate advised Bush to withdraw the nomination.
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
mpollack at law.uoregon.edu
----- Original Message ----- 
From: "Lawrence B. Solum" <lsolum at sandiego.edu>
To: "Bryan Wildenthal" <bryanw at tjsl.edu>
Cc: <conlawprof at lists.ucla.edu>
Sent: Saturday, February 21, 2004 4:07 PM
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
> > ***************************
> >
> >
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