19 November 2007

Advise and Consent

Conservative provocateur Catron commented regarding the previous post on recess appointments:

Presumably, you felt just as much outrage over Bill Clinton's many recess appointments. Or are they only "unconsitutional" when a Republican makes them?
Fair question, and deserving a fair response:

There is a difference between the context, degree, and manner in which the two presidents used this authority. Clinton issued 140 recess appointments; Bush is on track for somewhere around 220. Clinton issued almost all recess appointments in the six years in which Congress was controlled by the opposing party; Bush has used this authority to a great degree when his own party controlled the Senate. Clinton, to all evidence, generally pursued consensus appointees; Bush is notorious for appointing polarizing candidates and has never sought input or consensus from the opposition party.

During the last six years of the Clinton Presidency, the republicans in control of congress obstructed consideration of Clinton's appointees, including in many cases refusing to even schedule hearings on them and/or refusing to bring them up for committee votes. During the Bush years, the Senate has been incredibly compliant in confirming Bush's nominees, even (amazingly) when it was controlled by democrats. Good data is hard to come by, but in a brief Google search, it appears that the Senate has confirmed ~95% of Bush's judicial appointees, whereas under Clinton the number was closer to 70%. (I'd appreciate a correction if anyone has better numbers.) Many of the cases in which Bush used the recess appointments were for applicants who had already been rejected by the Senate or in some cases, who he did not even submit to the Senate, knowing that they would never get confirmed.

It is difficult to define an objective distinction between valid use of this authority and abuse of this authority. Having said that, the conclusion I draw from the above is this:

Clinton used RAs to resolve the political stalemate created by a hostile congress which refused, in bad faith, to act on his appointees;
Bush has used RAs to evade the constitutional requirement for Senate approval, or to over-ride the Senate's rejection of his candidates.

Clearly both Bush and Clinton used the power other than it was intended by the Founders and I would support restrictions on its use in the future.

5 comments:

  1. I hope John Bolton is our next VP, just so you guys can have another 8 year migraine.

    /smirk

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  2. That would be pretty awesome, wouldn't it, in a sort of "poke in the eye with a sharp stick" sort of way...

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  3. Clearly both Bush and Clinton used the power other than it was intended by the Founders ...

    Believe it or not, I actually agree with this. The recess appointment was created at a time when travel was slow and “recess” meant the senators were actually gone for a while. So, a recess appointment was sometime necessary to keep the wheels of government turning. I doubt the people who wrote the constitution expected this power to become the weapon it has become.

    Bush has used RAs to evade the constitutional requirement for Senate approval ...

    Actually, in most cases (including John Bolton), he deployed the RA because the Democrats used the filibuster (speaking of dubious parliamentary maneuvers) to prevent up or down votes that would have confirmed nominees they disliked. That was the first time the filibuster had been used in that way, and (for my money) it was the very definition of “bad faith.”

    And, like Scalpel, I expect Rudy to give Bolton a prominent spot in his administration, although I’m betting on Secretary of State.

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  4. I vote Hillary/Bolton - that way everyone will hate the ticket!

    With regard to the filibuster, it's untrue that dems pioneered that maneuver against nominees. In 1968, Republicans filibustered Abe Fortas, preventing him from becoming chief justice of SCOTUS.

    It's funny how when Dems were in the minority, filibusters were bad things, and now that the GOP is filibustering everything in sight, it's a normal part of life again... everybody knows you need sixty votes to do anything in the senate, right?

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  5. I expect Rudy to give Bolton a prominent spot in his administration

    I vote Hillary/Bolton - that way everyone will hate the ticket!

    Christ, you guys are kicking up some migraines with auras and nausea over here. Aren't you first of all supposed to do no harm or something? ;-)

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